UN Security Council Counter-Terrorism Committee report on bringing terrorists to justice

Read it here.

A. International cooperation in counter-terrorism investigations and prosecutions
B. The role of the prosecution in counter-terrorism cases
C. New challenges in the investigation and prosecution of terrorism
D. Prosecution of terrorism cases and prevention of terrorism
E. The prosecution and counter-terrorism investigations
F. Organization of the prosecution and its relationship with other agencies
G. Concluding observations

List of good practices identified by participants

CCR sues ‘Guantanamo North’ detention facilities in Aref et al v. Holder

NPR has a story about the “Communications Management Units” in Terre Haute, Ind., and Marion, Ill. The special detention unit in Terre Haute contains 50 cells housing some of the people the U.S. describes as the “country’s biggest security threats”, including John Walker Lindh. The units’ population has included men convicted in well-known post-Sept. 11 cases, as well as defendants from the 1993 World Trade Center bombing, the 1999 “millennium” plot to bomb the Los Angeles airport, and hijacking cases in 1976, 1985 and 1996. The Bureau of Prisons says a total of 71 men now live in the units.

Guards and cameras watch the CMU inmates’ every move. Every word they speak is picked up by a counterterrorism team that eavesdrops from West Virginia. Restrictions on visiting time and phone calls in the special units are tougher than in most maximum security prisons. Prisoners in the CMU, alone out of all general population prisoners within the federal system, are categorically banned from any physical contact with visiting friends and family, including babies, infants, and minor children. To further their social isolation, the BOP has placed severe restrictions on their access to phone calls and work and educational opportunities.

According to CCR:

“Adding to the suspect nature of these units, upwards of two-thirds of the prisoners confined there are Muslim – a figure that over-represents the proportion of Muslim prisoners in BOP facilities by at least 1000 percent. Many of the remaining prisoners have unpopular political views, including environmental activists designated as “ecoterrorists.”

When the Terre Haute unit opened in December 2006, 15 of the first 17 inmates were Muslim. AAlexis Agathocleous, a lawyer at the Center for Constitutional Rights:

“We were concerned about what appears to be racial profiling and also a pattern of designations to the CMUs of people who have spoken out at other prison units and advocated for their rights and have taken leadership positions in religious communities in those other prisons,” he says. They are segregated from other prisoners because officials worry that they could recruit other inmates for terrorism or direct people in the outside world to commit crimes.

Civil rights groups have filed lawsuits however that accuse the two U.S. facilities of some of the same due process complaints raised by people at Gitmo.Prison officials opened the first CMU with no public notice four years ago, something inmates say they had no right to do under the federal law known as the Administrative Procedures Act. Unlike prisoners who are convicted of serious crimes and sent to a federal supermax facility, CMU inmates have no way to review the evidence that sent them there or to challenge that evidence to get out. Also, as word got out that the special units were disproportionately Muslim,
civil rights lawyers say, the Bureau of Prisons started moving in
non-Muslims. According to CCR:

“Five CMU prisoners and two of their spouses (who, along with their children, have been subjected to draconian rules governing visitation and phone calls) have joined the lawsuit as plaintiffs. All five men confined in the CMU have been classified as low or medium security, but were designated to the CMU despite their relatively, and in two cases perfectly, clean disciplinary history. Not a single one has received discipline for any communications-related infraction within the last decade, nor any significant disciplinary offense.

Like all CMU prisoners, the men received no procedural protections related to their designation, and were not allowed to examine or refute the allegations that led to their transfer. They are also being held indefinitely at the CMU without any meaningful review process. They expect to serve their entire sentences in these isolated and punitive units.

Predictably, the lack of procedural protections has allowed for an unchecked pattern of discriminatory and retaliatory designations to the CMU. Rather than being related to a legitimate penological purpose or based on substantiated information, our clients’ designations were instead based on their religious and/or perceived political beliefs, or in retaliation for other protected First Amendment activity.

American University law professor Stephen Vladeck reviewed NPR’s findings. He says he has some questions about the secrecy surrounding the units and whether the prison is sending the right people there.

“I think the real question is, what are the constraints and how are we sure that the right people are being placed in these units and not the wrong ones?” Vladeck says.

“Mixing prisoners from different backgrounds who actually don’t necessarily live up to those criteria I think is troubling,” Vladeck adds, because it means some inmates might not belong there, and others who do belong may not be getting the attention they deserve.

Documents:

• Complaint – Aref, et al. v. Holder, et al. (PDF)
• Defendants’ Motion to Dismiss (PDF)
• Memo in Opposition to Motion to Dismiss (PDF)
• Supplemental Motion to Dismiss.pdf
• Memo in opposition to supplemental motion to dismiss.pdf

Ken MacDonald and Baroness Neville-Jones uncorrected evidence given to UK joint committee on Human Rights’ session on counter-terrorism

In this statement Ken MacDonald elaborates upon his critique to control orders and offers some thoughts about police bail as an alternative. He also elaborates upon extending the pre-charge detention limit to 28 days by emergency legislation, intercept evidence and the Chilcot review. Baroness Jones offers her views on control orders and draft emergency law legislation as well.

Canadian Supreme Court rules government may withold national security-related evidence in Tortonto 18 terrorism case

[JURIST] The Supreme Court of Canada on Thursday upheld challenged aspects of the Canada Evidence Act , ruling that national security considerations take precedence over criminal convictions. The court affirmed the constitutionality of a provision that vests the Federal Court with, and removes from trial judges, the authority to determine the national security implications of evidence that prosecutors seek to withhold. In reaching its conclusion, the court noted the balance that must be struck between ensuring security and a fair judicial system:

As we have stated, co-operative arrangements between the prosecution and the defence are to be encouraged, as they have the potential to greatly facilitate complex trials for all parties involved and to reduce the strain on judicial resources. However, the defence is under no obligation to cooperate with the prosecution and if the end result of non-disclosure by the Crown is that a fair trial cannot be had, then Parliament has determined that in the circumstances a stay of proceedings is the lesser evil compared with the disclosure of sensitive or potentially injurious information.

The case stems from the prosecutions of the “Toronto 18” who were arrested in 2006 after police learned of their plans to bomb sites throughout Ontario using fertilizer explosives in response to Canada’s military involvement in Afghanistan.

UK’s review of counter-terrorism and security powers

The redacted review considered six key counter-terrorism and security powers:

• The detention of terrorist suspects before charge, including how we can reduce the period of detention below 28 days
• Section 44 stop and search powers and the use of terrorism legislation in relation to photography
• The use of the Regulation of Investigatory Powers Act 2000 (RIPA) by local authorities and access to communications data more generally
• Measures to deal with organisations that promote hatred or violence
• Extending the use of ‘Deportation with Assurances’ in a manner that is consistent with our legal and human rights obligations
• Control orders (including alternatives)

The review found that in some areas the UK’s counter-terrorism and security powers were “neither proportionate nor necessary”. It proposed:

• A return to 14 days as the standard maximum period that a terrorist suspect can be detained before they are charged or released
• An end to the indiscriminate use of terrorism stop and search powers provided under Section 44 of the Terrorism Act 2000
• The end to the use of the most intrusive RIPA powers by local authorities to investigate low level offences and a requirement that applications by local authorities to use any RIPA techniques are approved by a magistrate
• A commitment to rationalise the legal bases by which communications data can be acquired and, as far as possible, to limit that to RIPA
• A stronger effort to deport foreign nationals involved in terrorist activities in this country fully respecting our human rights obligations
• The end of control orders and their replacement with a less intrusive and more focused regime. Additional resources will be provided to the police and security agencies to ensure the new measures are effective not only in protecting the public but in facilitating prosecution

A new version of the Government’s counter terrorist strategy, CONTEST, will be published within a few months.

UN report confirms gap between law and reality, torture, secret detentions and police harassment in Tunisia under Ben Ali

The United Nations just published a report on its website which describes the fact-finding mission of the United Nations Special Rapporteur on the protection of human rights while countering terrorism in January 2010. On the basis of the evidence he gathered, he observed a pattern of unacknowledged detention being used vis-à-vis terrorist suspects. During the period of secret detention, terrorism suspects are at high risk of being subjected to torture and ill-treatment. The secrecy that surrounds custody and interrogations by the unit of the “Police Judiciare”, which is in charge of interrogating terrorism suspects (commonly referred to under its previous name “Directorate for State Security”, DSS), renders investigations into abuses improbable and, consequently, leads to a lack of accountability and to impunity. The Special Rapporteur further concludes that the judiciary does not effectively act as a safeguard against these practices, and that the restrictions on access to lawyer during police custody aggravate his concerns. The report will be discussed by the United Nationas Human Rights Council around the 7th of March 2011.

The report is the last official UN report to describe practices under the Ben Ali regime, and it was the first time in more than 15 years that the UN’s special procedures mechanisms visited the country for a fact finding mission.

Mission: no access to Ministry of Interior interrogation facilities
The Special Rapporteur met with the former Minister of Foreign Affairs, the Minister for Justice and Human Rights, Ministry of Interior officials, judges, parliamentarians, lawyers, academics and non-governmental organizations, in addition, he visited the Bouchoucha police detention facility and the Mornaguia Prison, where he interviewed several persons suspected of, or convicted for, terrorist crimes. More significant the Special Rapporteur was denied access to the interrogation facilities of the Sub-directorate for Criminal Affairs of the “Police Judiciaire”, also known as “Directorate of State Security”, DSS, where the overwhelming majority of the allegations of torture or ill-treatment took place.

The abuse of the definition of terrorism

In his assesment of Tunisia’s revised anti-terrorism law, the Special Rapporteur says clearly that the definition of terrorism does not fulfil the legality requirement contained in article 15 of the International Covenant on Civil and Political Rights or article 13 of the Tunisian Constitution. The Rapporteur concludes:

The current wide definition clearly carries the risk of broad application of counterterrorism legislation, which in turn means that the term “terrorism” may become diluted and lose its distinguishing stigma. This may have possibly far-reaching consequences for the rights to freedoms of expression, association and assembly.

According to the SR, the combination of the wide definition of terrorism, combined with the criminalization of preparatory acts of terrorism “allow for targeting as “terrorists” people who simply hold radical and unpalatable views without posing a real danger in terms of planning any violent acts.”

In the view of the Special Rapporteur, it appears that the scope of application of the terrorism provisions in the law has grown too wide and should be reduced. Any anti-terrorism law that is not properly confined to the countering of terrorism within the limits of human rights law is problematic, not only because an overly expansive scope of such a law weakens its own legitimacy and ultimately may prove to be counter-productive, but particularly because it may unjustifiably restrict the enjoyment of human rights pertaining to the exercise of peaceful activities, including dissent and political opposition through legitimate associations. The Special
Rapporteur identified the danger of a ”slippery slope” which not only results in persons being convicted of “terrorism” who do not deserve that stigma, but also endangers the effectiveness of the fight against terrorism by trivializing the phenomenon.

First clear indication of number of persons detained under Tunisia’s anti-terrorism law, and Tunisia’s structure of the internal security forces under the Ministry of Interior

The Special Rapporteur indicates that perhaps one person per day was arrested and/or detained on the basis of the anti-terrorism law. The official statistics that the Special Rapporteur received showed that overall 214 cases have been brought before a court in the seven years since its adoption, in which 1,123 individuals were involved. (So this number does not include people who were never tried.)

Furthermore, the Special Rapporteur received information about a number of cases, where the main “crime” seems to have been to have visited certain countries or even mosques, downloaded or watched certain programmes online, having held prayers together, or having met with others to discuss religious issues.

Regarding the structure of the security forces of the Ministry of the Interior, the Special Rapporteur was expressed concerns about the myriad of agencies that were responsible for countering terrorism.

Elements rendering the practical operation of counter-terrorism policing opaque are the use of several common names for what appears to be the same entity, namely the Subdirectorate of Criminal Affairs, formerly known as “DSS”, standing for the “Directorate of State Security” and the lack of publicly available information on its status and organization.

Back-dating of arrest dates resulting in a pattern of secret detention

Numerous testimonies collected by the SR indicated – and it was admitted by the authorities – that dates of arrest are routinely post-dated, thereby circumventing the rules about the allowed length of police detention and taking detainees out of the protection framework.

When the Special Rapporteur visited Bouchoucha, the police station in Tunis through which terrorism suspects pass before being transferred to pretrial detention, he discovered that all of the 25 detainees whose names were contained in the custody record in relation to terrorist crimes had been brought there by members of the “Police Judiciaire” in the late afternoon or evening and taken out once during the following night for an unspecified period (the officials present during the visit explained that such temporary transfers were indicated in pencil only and erased once the person returned) before finally being transferred before a judge in the morning of the next day. The recorded practice of very short official police custody in terrorism cases is in stark contradiction with reports by detainees and families about interrogations ranging from several days to a number of weeksbefore being brought before a judge. The police officers in Bouchoucha also denied
knowing where the “Police Judiciaire” holds the suspects before bringing them to Bouchoucha for registration into official detention. This pattern appears to be compatible with the many allegations received by the Special Rapporteur that people under investigation are typically in terrorism cases first held in unacknowledged police custody.

In a damning paragraph, the Special Rapporteur highlights that evidence brought to the attention of the Special Rapporteur indicated that suspected terrorists are routinely held in secret in a building of the Ministry of Interior in Tunis.

Detainees allegedly sleep either on the ground floor in rudimentary conditions in a number of cells grouped around a larger room, or in smaller cells in the basement. Interrogations also take place on upper floors. No person from the outside has access to these premises, so detainees are at the mercy of their custodians, which, in itself, puts pressure on them and may constitute inhuman treatment. The authorities, however, continue to deny that the Ministry of Interior detains persons within or close to its official premises. Despite repeated requests, they did not allow the Special Rapporteur access to the interrogation facilities of the Ministry.

The Rapporteur concludes:

On the basis of the evidence gathered, he observed a pattern of unacknowledged detention, operating in the city of Tunis under the interrogation authority of the Ministry of Interior, being used to detain terrorist suspects. During this period that precedes detainees’ official registration in police custody, they are also routinely subjected to torture and ill-treatment and denied access to a lawyer.

Torture and the use of confessions obtained under torture

Numerous cases of terrorism suspects brought to the Special Rapporteur’s attention indicate that ill-treatment and/or torture is perpetrated during initial, unacknowledged police custody or interrogations by what is commonly referred to as “DSS”, in particular if the suspects refuse to confess.

The details of these accounts suggest that these practices occur under the direct control of the Ministry of Interior and possibly even within or next to the premises of the Ministry. According to consistent allegations, suspects are regularly subjected to severe beatings on different parts of the body, including genitals, with fists, cables and batons, kicking, slapping, often combined with stripping of their clothes and suspensions (including in the so-called poulet rôti (“roast chicken”) position), even in ordinary offices of the Ministry. Some reports also described electroshocks and mock-drowning taking place in one particular room in the basement, especially in cases, where suspects resisted to making confessions. Other methods used included extended periods of sleep deprivation, burning with cigarettes, threats with rape, threats to family members and anal rape. The treatment was allegedly perpetrated by plainclothes officers of DSS.

The main purpose of the torture was to extract confessions, and sometimes testimonies about third persons. It normally stopped with the signing of papers that most suspects had not been allowed to read. However, the Special Rapporteur received allegations about instances of reprisals occurring in official places of detention in terms of beatings, threats and solitary confinement, for instance, for prisoners that had made calls for prayer or submitted complaints. In several cases, detainees were transferred from prisons back to the premises of the Ministry of Interior for interrogation and ill-treatment.

The testimonies also indicated that existing safeguards are ineffective in practice. Apart from the fact that the ill-treatment normally happens prior to the registration of police arrest, access to independent medical examinations, although provided for by law upon authorization by a judge, is practically never granted, and can therefore not be considered an effective safeguard. If at all, medical examinations take place months after the illtreatment was perpetrated, and therefore fail to produce evidence that can be used in court. The resulting “lack of proof” is then used by prosecutors and judges to ignore claims about torture and ill-treatment and, on that basis to reject requests for investigations.

No real accountability for torture

While noting the importance of at least some trials and convictions, the Special Rapporteur considers that the number of prosecutions or other clear findings related to torture remains disturbingly low when compared to the frequency and severity of the allegations he received. He is concerned that there are remnants of a climate of impunity within law-enforcement structures. This is all the more troubling in light of allegations that confessions are frequently used as evidence in court. He is therefore concerned that the lack of effective investigations into allegations of torture may have led and continue to lead to unfair trials and illegitimate court judgements, on the basis of which persons may be deprived of their liberty – one of the most severe interferences with fundamental freedoms – for years, sometimes decades. He therefore calls upon the authorities to reopen.

Overall, the Special Rapporteur is concerned that the judiciary appears to fail to act as an effective remedy when it comes to allegations of torture or ill-treatment. Numerous persons indicated that raising such allegations during trial practically never leads to any action by the judges. Unfortunately, the Special Rapporteur’s meetings with judges of the Appeals Court in Tunis did not take away his concern of that protocols that mention torture allegations and other written submissions on the issue are routinely ignored by the court.

This raises serious concerns in terms of the independence of the judiciary, guaranteed by article 65 of the Constitution and the Law No. 29 of 1967, exacerbated by indications thatthe Executive Branch, through the Supreme Council of the Judiciary (which is composed of the President, who is the Chairman, and the Minister of Justice as Vice-chairman, plus a majority of members either representing or appointed by the Executive Branch) controls many aspects of the judiciary, including appointments, promotions, transfers and disciplinary measures.

Clarification of rendition case of Laid Saidi

Concerning Tunisia’s participation in illegal forms of cooperation in counterterrorism, the Special Rapporteur has received allegations that Tunisian authorities were involved in holding a detainee sent to Tunisia by the United States’ Central Intelligence Agency, who was then transferred to other countries. Laid Saidi was reportedly seized in the United Republic of Tanzania, transferred to Malawi, then rendered to Afghanistan and further to Tunisia, where he was held for 75 days before being returned to his home country Algeria (see A/HRC/13/42, para. 133). According to the Government however Laid Saidi had arrived with a “special flight” on the 9 June 2004, where he was presented by four foreign security officials to Tunisian authorities at the airport of Tunis Carthage under the name of Ramzi Ben Fredj. The Tunisian security services conducted an audit and concluded that the person had usurped the identity of the real Ramzi Ben Fredj.

The person then acknowledged that he was actually Laid Saidi. The next day, on the 10 June 2004, Said was sent back with the same special flight to a “foreign country”; he was then still accompanied by the same foreign agents. Similarly, it has been alleged that Tunisian intelligence officials participated in interrogations of terrorist suspects in Afghanistan (see interview with Bisher Al-Rawi, A/HRC/13/42, annex II, case 4). The
Special Rapporteur regrets that, according to his information, the Government of Tunisia has not started any investigation into these allegations.

Harassment of defence lawyers

The Special Rapporteur received a number of allegations regarding obstruction of the work of defence lawyers, e.g. concerning restrictions on access to their clients and their clients’ files, but also about harassment in more general terms, in particular vis-à-vis those who defend terrorism suspects. This can take the form of interference with their correspondence, non-issuance of passports for international travel, but also go further to not allowing them to enter certain places, pressuring family members, etc.

U.S. Prepares to Lift Ban on Guantánamo Cases

The NY Times reports that the Obama administration is preparing to increase the use of military commissions to prosecute Guantánamo detainees. Defense Secretary Robert M. Gates is expected to soon lift an order blocking the initiation of new cases against detainees, which he imposed on the day of President Obama’s inauguration. That would clear the way for tribunal officials, for the first time under the Obama administration, to initiate new charges against detainees. Charges would probably then come within weeks against one or more detainees who have already been designated by the Justice Department for prosecution before a military commission, including Abd al-Rahim al-Nashiri, a Saudi accused of planning the 2000 bombing of the American destroyer Cole in Yemen; Ahmed al-Darbi, a Saudi accused of plotting, in an operation that never came to fruition, to attack oil tankers in the Straits of Hormuz; and Obaydullah, an Afghan accused of concealing bombs.

CCR statement here.

Boumediene: the record so far

SCOTUS wraps up the Gitmo-habeas cases after the US SC Boumediene ruling. Although detainees have won a clear majority of the habeas trials, any actual release from captivity has come to depend almost entirely on what the Executive Branch is willing to do or able to arrange. Key facts:

* Of 38 cases in which federal District judges have completed habeas  trials, 29 detainees have been issued habeas writs. The US decided not to appeal 29 of 38 grants, two of them have been reversed or vacated. All but 5 of the 29 have been transferred. All but five of the 29 have left Guantanamo, after releases to other countries were  arranged through U.S. diplomatic efforts. The five who are still at Guantanamo are seeking, in their new petition (Kiyemba v. Obama, now known as “Kiyemba III,” docket 10-775) to test whether a federal judge has any authority to order and achieve actual release for a captive whom the government no longer insists on detaining.

* in 19 cases District judges have denied habeas writs. 1 denial was reversed and remanded (the Bensayeh case) and 1 grant was reversed in Al-Adahi

* 8 cases are currently pending on cert petitions at the Supreme Court:

4 (Awad, Al-Bihani, Al Odah and Al-Adahi) are seeking reversal of denial of habeas.

In a 5th case (Ameziene) the petitioner is seeking reversal of a ruling that the US may keep certain information secret (under seal).

In 2 cases regarding Algerian detainees (Mohammed and Khadr) the petitioners are seeking reversal of ruling that judges can’t enjoin transfer.

Last but not least in Kiyemba III the Uighurs are seeking the reversal of a ruling that judges can’t order transfers.

New report on the European Arrest Warrant

This week Fair Trials International has published a new report on the European Arrest Warrant (EAW). The report is part of FTI’s response to the Government’s review of the UK’s extradition arrangements, which are being examined by an independent panel headed by the Rt Hon Sir Scott Baker.

ICG report on Reforming Pakistan’s Criminal Justice System

Read it here.