UN Human Rights Committee criticizes Jordan and Poland for terrorism laws

On Jordan, the Committee was concerned about the “vague and broad definition of “terrorist activities in the 2006 Prevention of Terrorism Act”. It also was concerend at the high number of reported cases of torrture iand ill-treatment in detention centres, particularly in the GID facilities. It was also concerned at the absence of a genuinely independent complaints mechanism to deal with cases of torture or ill-treatement perpetrated by puclic officials, as well as at the low number of prosecutions of such cases. Furthermore, the Committee was concerned that the Law on Crime Prevention empowers governors to authorize the detention witihout charge, and without generally accessible safeguards, or trial of anyone “deemed to be a danger to society”.

On Poland, the Committee expressed concern that “the definition of a terrorist crime, as laid down in article 115 of the Penal Code, is broad and does not adequately define the nature and consequences of the acts. It also notes concerns about the former existence of a secret detention centre. Somewhat strangely the Committee “notes with concern that the investigation conducted by the Fifth Department for Organized Crime and Corruption of the Appellate Prosecution Authority in Warsaw is not yet concluded.”

Jordan’s cyber law criticized

Jordan passed a provisional cyberspace law this month that Paris-based Reporters Without Borders said creates a “legislative arsenal that can be used to punish those whose posts upset the authorities.” Penalties range from fines to forced labor. In a letter Tuesday to Abdullah, the New York-based Committee to Protect Journalists said the law could be used to harass online media and undermined “Jordan’s image as a free and open society.”

Article 8 penalises “sending or posting data or information via the Internet or any information system that involves defamation or contempt or slander,” without defining what constitutes those crimes.

Article 12 penalises obtaining “data or information not available to the public, concerning national security or foreign relations of the kingdom, public safety or the national economy” from a website without a permit.

Article 13 allows for law enforcement officers to search the offices of websites and access their computers without prior approval from public prosecutors.

HRW: France, Germany and UK should stop using foreign intelligence obtained under torture in the fight against terrorism

France, Germany, and the United Kingdom use foreign intelligence obtained under torture in the fight against terrorism, Human Rights Watch said in a report released today.
 
The 62-page report, “No Questions Asked: Intelligence Cooperation with Countries that Torture,” analyzes the ongoing cooperation by the governments of France, Germany, and the United Kingdom with foreign intelligence services in countries that routinely use torture. The three governments use the resulting foreign torture information for intelligence and policing purposes.

The intelligence services in France, Germany, and the UK do not have detailed instructions on how to assess and follow-up on information coming from countries that torture, Human Rights Watch said. Parliamentary oversight in each country is also inadequate.
 
Intelligence services in all three countries claim it is impossible to know the sources and methods used to acquire shared information. But officials in the UK and Germany have made public statements indicating that they believe it is sometimes acceptable to use foreign intelligence even if it is obtained under torture. Such statements send the wrong message to abusive governments, Human Rights Watch said.
 
Information tainted by torture has also been used in criminal and other proceedings in France and Germany, Human Rights Watch said, despite both international and domestic rules banning the use of torture evidence in any proceedings.
 
The report cites the case of Djamel Beghal, whose statements made under ill-treatment in the United Arab Emirates were used against him in a French court, where he was on trial for plotting a terrorist attack. In another example, the alleged confession of a man known as Abu Attiya under ill-treatment in Jordan was used against terrorism suspects on trial in France. German courts have allowed as evidence the summaries of interrogations of three high-profile terrorism suspects in incommunicado US detention, as well as evidence collected as result of statements made by Aleem Nasir, a Pakistan-born German citizen suspected of terrorist ties, while in the custody of the notorious Pakistani intelligence services.
 
Human Rights Watch said that in practice, overseas torture material can end up being used in court because the burden falls on defendants to prove it was obtained under torture, a nearly impossible task.

“The rules meant to exclude torture from the courts don’t work,” Sunderland said. “It should be up to prosecutors to prove that evidence originating in countries that torture wasn’t obtained through abuse.”

The use of torture intelligence in the fight against terrorism by France, Germany, and the UK damages the credibility of the European Union, Human Rights Watch said. The actual practices of these leading EU states contradict the EU’s anti-torture guidelines, which make eradicating torture and ill-treatment a priority in its relations with other countries. Over the long-term, abuses in the name of countering terrorism also feed the grievances that fuel radicalization and recruitment to terrorism, Human Rights Watch said.
 
France, Germany, and the UK can engage in necessary intelligence cooperation without undermining the global torture ban, Human Rights Watch said. To do so, they must make genuine inquiries of countries that provide information to determine whether torture was used to obtain it and to determine what steps the authorities have taken to hold to account those responsible for any abuse that comes to light.
 
Cooperation should be suspended in cases where there are grounds to believe torture or ill-treatment were used to obtain shared information. There is also a need for tighter parliamentary oversight of intelligence cooperation, and stronger rules to prevent torture material from entering the judicial process.

“Europe has been forced to confront its complicity in US counterterrorism abuses,” Sunderland said. “It is time for France, Germany, and the UK to take responsibility for their own role in third-party abuse, and to ensure that their intelligence cooperation isn’t perpetuating abuse.”

Human Rights Watch called on the governments of France, Germany, and the United Kingdom to:

    * Publically repudiate reliance on intelligence material obtained from third countries through the use of torture or cruel, inhuman, or degrading treatment;
    * Reaffirm the absolute prohibition on the use of torture evidence in any kind of proceeding;
    * Clarify procedure rules on excluding torture evidence in criminal and civil proceedings to make clear that where an allegation that a statement was made under torture is raised, the burden of proof is on the state to show that it was not made under torture;
    * Ensure that national intelligence services have clear guidance on appropriate engagement with partner services with known records of torture, and that intelligence cooperation arrangements with third countries include clear human rights stipulations, including the duty to discontinue cooperation in an individual case if credible allegations of torture come to light;
    * Strengthen parliamentary oversight over national intelligence services; and
    * Ensure that any form of complicity in torture is a criminal offense in domestic law, and that state agents who are complicit in torture anywhere in the world are prosecuted, including those who systematically receive information from countries and agencies known to practice torture.

 

Harith Al-Dari-s son on terror list

Jordan has placed Muthana Harith Al-Dari, the son of Harith Al-Dari, secretary-general of the Association of Muslim Scholars in Iraq, on the terror blacklist, pursuant to the decision of the U.N. Security Council Al-Qaida and Taliban Sanctions Committee.

The U.S. accuses Muthana Harith Al-Dari of aiding resistance elements in Iraq.

UK delays new guidelines for intelligence agencies, will continue diplomatic assurances deportations in 2010

New British guidelines on handling terrorism suspects held overseas have been delayed over a dispute about how to deal with potentially life-saving information from detainees who may be at risk of torture by allies.

Prime Minister Gordon Brown promised a year ago that new rules would be drawn up, and the government was expected to make them public for the first time on Thursday. But officials have acknowledged the document won’t appear before the country’s national election, due within three months.

Brown ordered the rules to be rewritten following accusations that British officials were complicit in the torture of terror suspects held overseas by other nations, including the United States. Police are investigating two cases related to the actions of intelligence officers from the MI5 and MI6 spy agencies.

Two government officials, who demanded anonymity to discuss the issue, said Britain’s government and Parliament’s intelligence oversight committee disagree over a section of the new rules dealing with how ministers should handle material gleaned from suspects who may be at risk of mistreatment.

“The problem is that there is a difference of opinion about something we have written in the report,” said Michael Mates, a Conservative lawmaker and a member of Parliament’s Intelligence and Security oversight committee.

A report by the committee on detainee handling will be published alongside the new guidelines. Opposition lawmakers and human rights groups have accused the government of purposely delaying publication of controversial material until after the election, expected in May.

Conservative Party legislator William Hague said Brown is “suspected in some quarters of wishing to suppress difficult issues” and accused the government of “mounting incompetence” over national security issues.

In a new report on human rights, Britain’s Foreign Office hinted at the likely tone of the new rules. It acknowledged the U.K. can’t “afford the luxury of only dealing with those” who share Britain’s standards or laws.

The Government has been absolutely clear that the UK stands firmly against torture and cruel, inhuman and degrading treatment or punishment. When detainees are in our custody we can be sure how they are treated and that measures are put in place to meet our obligations and standards. We cannot always have that same level of assurance when they are held overseas by foreign governments.

However, we cannot get all the intelligence we need from our own sources, because the terrorist groups we face are scattered around the world, and our resources are finite. So we must work with intelligence and security agencies overseas. Some of them share our standards and laws while others do not. But we cannot afford the luxury of only dealing with those that do. The intelligence we get from others saves British lives.

Whether sharing information, which might lead to the detention of people who could pose a threat to our national security; passing questions to be put to detainees; or participating in interviews of them, we do all we can to minimise, and where possible avoid, the risk that the people in question are mistreated by those holding them. However, there are times when we cannot reduce the risk to zero.

Once published, our consolidated guidance to Agency staff and service personnel will make clear the careful and considered way we approach these situations. Ultimately it is for Ministers to balance the risk of mistreatment against the national security needs and make a judgement. Ministers take this responsibility very seriously. If the risk of mistreatment is too high then we will not go ahead with an operation. This is not just a theoretical possibility – operations have been stopped because the risk of mistreatment was judged to be too high. But this is never an easy judgement and we would be failing in our twin duties to defend the country and to uphold human rights if we pretended that there was never a tension between the two.

Foreign Secretary David Miliband told the House of Commons that drafting the new rules had been more complex than first imagined. “The most important thing is to get this guidance right,” he told lawmakers.

Lawmaker Kim Howells, chairman of the Intelligence and Security Committee, said it was now “a matter for the prime minister” to decide when the rules are finalized and made public. Howells on Thursday issued an annual report by his oversight committee, warning that Britain’s intelligence agencies are preparing for cuts to their budgets for the first time since the Sept. 11, 2001, attacks on the United States.

In the human rights report the FCO further stressed one particular aspect of the Court of Appeal ruling in the Binyam Mohamed case, namely that it “upheld the principle that intelligence belonging to another state should not be released without its consent”.

On the case of Shaker Aamer it says:

Legal counsel for Shaker Aamer, the last remaining former UK resident held in Guantanamo Bay, also brought proceedings against the Foreign Secretary seeking disclosure of information that he believed may support his claim that he was tortured while in US custody. The UK searched for potentially relevant material of this nature, and this was also disclosed to the US authorities, who in turn disclosed it to Mr Aamer’s US-based security-cleared counsel representing him in proceedings before the US Guantanamo Review Task Force. We were informed in January 2010 that Mr Aamer had decided not to seek further disclosure, as the disclosure in the US had enabled his legal representatives to make the necessary representations on his behalf to the Task Force which was reviewing his case. The Government has continued to make clear to the US authorities that our request for Mr Aamer’s release and return to the UK stands. We have also sought welfare updates on him.

It also defended the continued use of diplomatic assurances.

Our policy continued to attract criticism in 2009 from some parts of the human rights community. We believe, however, that the assurances we have received in individual cases are robust and can be relied upon,not least because of the strong bilateral relationships enjoyed with the governments with which we have Deportation with Assurances (DWA) arrangements.

We always ensure that our work is compatible with our international human rights obligations, in particular the European Convention on Human Rights (ECHR) and the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). We will not seek to deport an individual where there are substantial grounds for believing that there is a real risk to that person of torture or other inhuman or degrading treatment or punishment, or that the death penalty will apply.

We have negotiated memoranda of understanding with Jordan, Libya, Lebanon and Ethiopia and an exchange of letters has taken place with the Algerian government. We will continue to negotiate new memoranda of understanding in 2010.

Moreover, we consider that our work on DWA has a positive effect on the human rights situation in the countries concerned, as it enables us to engage with these governments on human rights issues. In the countries with which we have memoranda of understanding, local NGOs have been appointed as monitoring bodies to follow up on the safety of those deported on their return.

The report continued with describing the capacity-building efforts with international parterns, describing for instance several projects that “have trained police forces to use modern evidencegathering techniques, which meet proper judicial standards. We have run such programmes in Saudi Arabia (see page 144), Pakistan and Libya. This helps to lower police reliance on obtaining confessions to convict suspects.”

Also:

The FCO has supported over 260 projects in the countries of the Muslim majority world on good governance; legal and prison reform; anticorruption; youth empowerment and employability; civil society development; education reform; and media reform and more open parliamentary reporting.

In allocating funds to Prevent projects, human rights are considered at both the application and implementation phases, to ensure that the projects will not have a negative impact on human rights, and that, where appropriate, human rights goals are included in the projects themselves.

Foreign Secretary David Miliband, speaking at an event in London to launch the report, said Britain’s commitment to uphold human rights had been under intense scrutiny.

“The question is not whether we should respect human rights in the process … rather the question is how human rights can be factored in to our approach,” he said.

Jordan terror plot trial

Ten alleged Islamist extremists accused of plotting to carry out attacks against Jordan’s army and intelligence service last year pleaded not guilty at the start of their trial on Sunday.

“The 10 men, who embrace the takfirism ideology, pleaded not guilty today at the (military) state security court to charges of plotting to carry out terrorist attacks in the kingdom in 2009,” a court official told.

“They were arrested last year after allegedly attempting to attack army posts in Jafr and Azraq, east of the kingdom, as well as intelligence officers in Zarqa,” near Amman, he said.

The Jordanian suspects, who face the death penalty if convicted, “also plotted to attack liquor stores in Amman, Rusaifeh and Zarqa as part of their jihad (holy war) in Jordan,” the official added.

“They wanted to kidnap the sons of intelligence officers to press the authorities to release some prisoners” he said.

The trial of the 10 was adjourned until February 9.

UN experts conclude major study into use of secret detention in the fight against terrorism

Despite the fact that international law clearly prohibits secret detention, the practice is widespread and “reinvigorated” by the so-called global war on terror, several independent United Nations experts stated, outlining a series of steps aimed at curbing this human rights violation. In a 222-page study which will be presented to the United Nations Human Rights Council in March, the experts conclude that: “If resorted to in a widespread or systematic manner, secret detention might reach the threshold of a crime against humanity.” Read the unedited advance version here.

The study, which took almost a year to complete, involves responses from 44 States to a detailed questionnaire, as well as interviews with 30 individuals – or their family members or their legal counsel – who were victims of secret detention, and in many cases may also have been subjected to torture.

It provides an historical overview of the use of secret detention, noting that it is not a new phenomenon in the context of counter-terrorism. From the Nazi regime to the former USSR with its Gulag system of forced labour camps, States have often resorted to secret detention to silence opposition, according to the report.

The study goes on to address the use of secret detention in the context of the ‘global war on terror’ following the events of 11 September 2001, describing “the progressive and determined elaboration of a comprehensive and coordinated system of secret detention” of persons suspected of terrorism, involving not only United States authorities, but also other States in almost all regions of the world. The study says, inter alia,

143.Given the prevailing secrecy regarding the CIA’s rendition programme, exact figures regarding the numbers of prisoners transferred to the custody of other governments by the CIA without spending any time in CIA facilities are difficult to ascertain. Equally, little is known about the amount of detainees who have been held at the request of other States such as the United Kingdom and Canada.While several of these allegations cannot be backed up by other sources, the Experts wish to underscore that the consistency of many of the detailed allegations provided separately by the detainees adds weight to the inclusion of Jordan, Egypt, Morocco, the Syrian Arab Republic, Pakistan, Ethiopia and Djibouti as proxy detention facilities where detainees have been held on behalf of the CIA. Serious concerns also exist about the role of Uzbekistan as a proxy detention site.

It also highlights that secret detention in connection with counter-terrorism policies remains a serious problem on a global scale, either through the use of secret detention facilities; through declarations of a state of emergency, which allow prolonged secret detention; or through forms of “administrative detention,” which also allow prolonged secret detention.

The study was issued by the Special Rapporteur on the promotion and protection of human rights while countering terrorism, Martin Scheinin; Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak; the Working Group on Arbitrary Detention (represented by its Vice-Chairperson, Shaheen Sardar Ali); and the Working Group on Enforced or Involuntary Disappearances (represented by its Chairperson, Jeremy Sarkin).

US-Jordan intelligence relationship

The Washington Post reports that Jordan is playing an increasingly vital role in the fight against al-Qaeda and other terrorist groups, sometimes in countries far beyond the Middle East, according to current and former government officials from both countries.”We have a close partnership with the Jordanians on counterterrorism matters,” acknowledged a U.S. counterterrorism official, who agreed to discuss the sensitive relationship on the condition of anonymity. “Having suffered serious losses from terrorist attacks on their own soil, they are keenly aware of the significant threat posed by extremists.”

Current and former U.S. intelligence officials said the special relationship with Jordan dates back at least three decades and has recently progressed to the point that the CIA liaison officer in Amman enjoys full, unescorted access to the GID’s fortress-like headquarters. The close ties helped disrupt several known terrorist plots, including the thwarted 2000 “millennium” conspiracy to attack tourists at hotels and other sites. Jordanians also provided U.S. officials with communications intercepts in summer 2001 that warned of terrorist plans to carry out a major attack on the United States.

After the Sept. 11, 2001, attacks, Jordan agreed to create a bilateral operations center with the CIA and helped in interrogations of non-Jordanian suspects captured by the CIA and transferred to Jordan in now-famous “rendition” flights. Jordan’s role was criticized at the time by human rights groups, and a United Nations inquiry in 2007 concluded that security officials had committed acts of torture, an accusation denied by Jordan.

Academic Articles and opinions worth reading

Jens David Ohlin (Cornell Law School) has posted The Torture Lawyers (Harvard International Law Journal, Forthcoming) on SSRN.

Laurence R. Helfer (Duke Univ. – Law) and Emilie Hafner-Burton have a new piece on “Opting Out: Derogations from Human Rights Treaties in National Emergencies“

Peter Margulies (Roger Williams University School of Law) has posted The Wages of Playing for Time: Avoidance Doctrines and Interpretive Method in National Security and Foreign Relations Cases on SSRN

Report: How effective are terrorist rehabilitation programs?

Detainee Operations in Counterinsurgency Operations – Lessons from Afghanistan 2005-2006 by Luke Coffey

Francesco Messineo (Univ. of Cambridge – Law) has posted The Abu Omar Case in Italy: ‘Extraordinary Renditions’ and State Obligations to Criminalize and Prosecute Torture Under the UN Torture Convention (Journal of International Criminal Justice, forthcoming).

From Westminster to Strasbourg: A and others v United Kingdom – HRL Review 2009.

Alec D. Walen (Institute for Philosophy and Public Policy) has posted The Morality of Preventive Detention for Suspected Terrorists; Possibilities and Limits for a Liberal Society on SSRN

Final Challenge paper: This paper presents the final policy recommendations coming out of the CHALLENGE project on the Changing Landscape of European Liberty and Security. It aims to provide a synthesis of the main policy-relevant inputs that have been presented during the five-year research project and at the same time, refining them in light of the Stockholm programme to be adopted at the conclusion of the Swedish Presidency of the EU in December.

Physicians for Human Rights: doctors who oversaw CIA waterboarding programme are ‘guitly of war crimes’

Evgeny Morozov on the exaggerated fears over digital warfare

A primer on balancing tests in US courts by Lawrence Solum

Judea Pearl – We need a new legal regime to fight the war against terrorism

Robert Chesney – Detention Debate in Black and White

CRS Report on FOIA legislation in the US, covering a history of FOIA, discuss current implementation of FOIA statutes, and outline pending FOIA legislation.

CRS report on U.S-China Counterterrorism cooperation here.

CRS report on U.S. Special Forces and CIA paramilitary operations here and here.

CRS report on UNAMA in Afghanistan.

CRS on DoD contractors in Iraq and Afghanistan.

CRS report on Afghanistan: Post-Taliban Governance, Security, and U.S. Policy

CRS report on proposed amendments to the Military Commissions Act

CRS report on oversight options for congress on sensitive covert action notifications

CRS report on US strategic interests and the role of US Africa Command

CRS report on intelligence issues for Congress

CRS report on US – Jordan relations

New NGO reports and academic articles of interest

Human Rights Watch has a new report on administrative detentions in Jordan. Read it here.The Open Society Initiative has a new report analyzing ethnic profiling both in ordinary policing and in counterterrorism, and finds that it is not just a violation of European laws and international human rights norms, but also an ineffective use of police resources that leaves the public less safe. Read the report here.

Center for Terrorism Research – Homegrown Terrorists in the U.S. and U.K.: An Empirical Study of the Radicalization Process, by Daveed Gartenstein-Ross and Laura Grossman.

Indonesia: Radicalisation of the “Palembang Group” – ICG report

ICRT – Using the Istanbul Protocol to document torture

Academic articles:

Anthony Dworkin – Beyond the “War on Terror”: Towards a New Transatlantic Framework for Counterterrorism’.

Mathew Waxman – United States Detention Operations in Afghanistan and the Law of Armed Conflict (Israel Yearbook on Human Rights, forthcoming).

David Cole – Out of the Shadows: Preventive detention, suspected terrorists, and war

Brookings Institute – Better Rules for Terrorism Trials

Brookings Institute – Refining American Interrogation Law

Benjamin Wittes – Legislationg the war on terror, an agenda for reform

Simon Chesterman – Intelligence Cooperation in International Operations: Peacekeeping, Weapons Inspections, and the Apprehension and Prosecution of War Criminals

Marko Milanović –  Extradition and Life Imprisonment on R (Wellington) v. Secretary of State for the Home Department [2008] UKHL 72, [2009] 2 W.L.R. 48 case decided by the House of Lords, dealing with the question whether the extradition of person to a foreign state where he or she is accused of a crime for which a sentence of life imprisonment can be imposed can potentially violate Article 3 of the European Convention on Human Rights.