guantánamo global justice initiative center for constitutional news briefing rights november 2007 legal updates...

GUANTÁNAMO DETAINEES AND CONSIDERING NEW COMBATANT "Ultimately, conducting new CSRTs — even GOVERNMENT LAWYERS FILE STATUS REVIEW TRIBUNALS discussing the possibility — repudiates every BRIEFS IN SUPREME COURT CASE prior assertion that the original CSRTs were DETERMINING DETAINEES’ RIGHTS In the and the Mili- valid acts, They are, in essence, both a TO BRING SUITS IN FEDERAL tary Commissions Act, the U.S. Congress hypocritical act as well as an act of moral COURT limited the rights of Guantánamo detainees cowardice." to file habeas petitions to challenge the The U.S. Supreme Court will hear a consoli- legality of their detention, and provided an CCR ATTORNEYS TO VISIT FORMER dated case this term that will once again inadequate alternative remedy which law- “GHOST” DETAINEE decide the issue of Guantánamo detainees’ yers are currently challenging in court. The right to challenge their detention in federal alternative remedy – a “DTA petition” – On September 28, 2007, attorneys with the court. This case combines Al Odah v. United provides that detainees can file a petition to Center for Constitutional Rights (CCR) filed States and Boumediene v. Bush. Al Odah challenge their “” determi- a visit request with the Defense Department consists of the first 11 habeas corpus peti- nations in the Court of Appeals of the D.C. to see their client, , who was tions filed after the landmark Supreme Court Circuit. The enemy combatant determina- transferred one year ago from secret CIA decision in Rasul v. Bush in 2004; Boumedi- tions resulted from Combatant Status Review detention to Guantánamo. Mr. Khan and ene is on behalf of six humanitarian workers Tribunals (CSRTs) in 2004. 13 other detainees were transferred from taken to Guantánamo after the Bosnian CIA detention where they were held in se- courts ordered local authorities to release In the early petitions, the Court of Appeals cret and subjected to coercive interrogation them. has demonstrated the inadequacy of this for years without official acknowledgement remedy. On July 20, the Court of Appeals that they were even in US custody. Two On August 27, 2007, the Center for Consti- held that the government would be com- attorneys from the Center expect to finally tutional Rights and co-counsel filed briefs in pelled to provide the complete record of a meet their client after a year of fighting for the case, arguing that detainees held in U.S. detainee – all the “government information” access. This visit will mark the first visit by custody possess fundamental constitutional – to both the judge and the detainee’s law- attorneys to Guantánamo to meet rights, and that the processes which exist are yer; yet this July ruling also imposed severe with any of the former ghost detainees des- insufficient to vindicate their rights. On Octo- limitations on the communication between ignated by the U.S. government to be “high- ber 9, 2007, the government filed its oppo- attorneys and detainees. The government value detainees” and imprisoned in a sepa- sition brief in the case. strongly challenged this ruling, citing the rate facility from the other detainees. disruption that would be caused by the Al Odah revisits many of the fundamental need to gather and provide all government In September, most of the former “ghost” issues previously decided by the Supreme information. On October 3, the Circuit Court detainees currently at Guantánamo were Court in CCR’s case Rasul v. Bush in 2004, refused to rehear this issue. In response to provided a form by the U.S. Department of when the high court determined that detain- the government’s concerns about the diffi- Defense notifying them of their right to an ees have a right to access the federal courts culty of compiling all government informa- attorney. In most cases, detainees had been to challenge their detention. Since Rasul, the tion for individual petitioners, the court sug- held for years prior to being offered access government has argued that, despite the gested that the government could resolve to counsel. None has yet visited with coun- ability of detainees to bring cases, they this problem by convening new CSRTs. sel. have no rights to be vindicated in U.S. courts. Moreover, since Rasul, Congress On October 9, the U.S. military stated that it LAWYERS SEEK TO PREVENT THE has passed two laws which attempt to re- was considering the possibility of reconven- TRANSFER OF SOME DETAINEES TO move the right of detainees to challenge ing CSRTs for some or all detainees. Re- COUNTRIES IN WHICH THEY WILL their detention through habeas corpus – the cently, two military officers who had sat on BE TORTURED Detainee Treatment Act in 2005, and the prior CSRTs in 2004 expressed strong criti- Military Commissions Act in 2006. cism of the inadequacy of these processes. Lawyers, in consultation with their clients, One of these men, Lt. Col. Stephen Abra- have worked to protect the small number of COURT OF APPEALS HEARING “DTA ham, also voiced strong opposition to the refugees at Guantánamo from being trans- PETITIONS”; GOVERNMENT convening of new CSRTs. Said Abraham: ferred to countries in which they will be sub- (continued on page 2)

Center for Constitutional Rights www.ccrjustice.org (continued from page 1) jected to . A relatively small number On Friday, October 5, District Court the four had ever been a member of a of detainees – approximately 50 – are at Judge Ricardo Urbina reinstated 16 law- terrorist group or taken up arms against risk of grave abuses if they suits filed by detainees at Guantánamo the . The suit charges then- are repatriated to their home countries. In Bay challenging their detention at the Secretary of State and the last two months, there have been at U.S. naval base there. Urbina had dis- the Pentagon chain of command with least two important developments in the missed the petitions in September despite approving interrogation methods that they efforts to protect Guantánamo’s refugees. the pending Al Odah/Boumediene cases, knew were in violation of U.S. and inter- which will determine the future of all of national law. On September 24, 2007, CCR submitted the petitions for habeas corpus filed by a petition to the US Supreme Court ask- Guantánamo detainees. Following Ur- CCR and co-counsel's appeal before the ing it to intervene in the case of a Libyan bina’s dismissals, the Department of Jus- D.C. Circuit Court of Appeals seeks to Guantánamo client and prevent his trans- tice warned detainees’ attorneys – includ- overturn a February 2006 D.C. district fer to Libya, where he would likely be ing CCR attorneys and volunteer habeas court decision that dismissed the plaintiffs' tortured and possibly killed. The client’s counsel – that they would be barred from constitutional, Alien Tort Statute (ATS), detention at Guantánamo – and the U.S. visiting their clients unless they filed new and Geneva Convention claims and government’s false and unsubstantiated cases under the Detainee Treatment Act found that the defendants were entitled to allegations that he was associated with a and agreed to far more restrictive pa- qualified immunity as they were acting group hostile to the Qadhafi regime – put rameters for legal visits and letters. within the scope of their employment in him at grave risk of indefinite detention, authorizing or condoning "aggressive torture, and death if forcibly returned to Detainees’ attorneys quickly filed a mo- interrogation techniques." However, in a Libya. The petition asks the Supreme tion for reconsideration, which Urbina May 2006 decision, D.C. District Court Court to issue an injunction in his case to granted on October 5, noting his concern Judge Ricardo Urbina upheld the plain- prevent his transfer to Libya. In December about the actions of the Department of tiffs' right to claims of religious abuse 2006 and again in February 2007, the Justice. "This court expresses no small under the Religious Freedom Restoration U.S. government declared its intention to concern over the Department of Justice Act, a law that was passed with over- transfer the detainee to Libya, notwith- precipitously disrupting petitioners' access whelming congressional support. standing his fears of severe persecution if to their counsel," Urbina wrote. he were forcibly returned. The U.S. State Department reports that, in Libya, “security The 16 cases now return to their prior update on releases... personnel routinely tortured prisoners status – on hold, pending the Supreme during interrogation or as punishment” Court’s decision in Al Odah v. United Nine detainees were recently transferred and that suspected political opponents States and Boumediene v. Bush. from Guantánamo. On September 27th and religious Muslims face brutal repres- one Mauritanian detainee, Mohamed sion by Libyan authorities. COURT OF APPEALS HEARS CASE Lemine Ould Sidi Mohamed, was trans- BY FORMER DETAINEES ferred home to Mauritania and has since In another related development, a district been freed. court judge granted a preliminary injunc- On September 14, 2007, CCR co- tion on behalf of Tunisian Guantánamo counsel argued the appeal of the first On September 29th six Afghans, one detainee blocking his transfer to Tunisia, case filed by Guantánamo detainees Yemeni, and one Libyan were transferred where he feared that he would be sub- seeking to hold U.S. officials accountable out of Guantánamo to their home coun- jected to persecution and torture if re- for the physical, psychological, and reli- tries. In the past, those transferred to turned. The Tunisian prisoner was alleg- gious torture and abuse at Guantánamo. have been held in custody edly captured for a bounty and was The civil case – Rasul v. Rumsfeld – was of the Afghan government for a short cleared for release in 2005; however, he filed by the Center for Constitutional amount of time and then released shortly was tried in absentia in Tunisia and sen- Rights along with co-counsel in October thereafter. We also recently learned that tenced to 20 years in prison. He ex- 2004 on behalf of four British citizens the Yemeni government has released the pressed to his lawyers that he did not who were unjustly held for more than four Yemeni detainees who were trans- want to be repatriated to Tunisia because three years. ferred out of Guantánamo in July of of the risks he would face if returned. On 2007. October 2, 2007, a district court judge Rasul v. Rumsfeld was filed in October held that “it would be a profound miscar- 2004 in D.C. Circuit Court on behalf of In total, there are approximately 330 riage of justice” if the court allowed the British citizens , Asif Iqbal, detainees in Guantánamo. A total of government to transfer the man to Tunisia Rhuhel Ahmed and Jamal al-Harith. While approximately 785 detainees, overall, despite the grave risks to his life and at Guantánamo, they were subject to have been held at Guantánamo since safety. repeated beatings, sleep deprivation, 2002. There have been 445 detainees extremes of hot and cold, forced nudity, transferred from Guantánamo to their FEDERAL DISTRICT COURT JUDGE death threats, interrogations at gunpoint, home countries or countries of resettle- REVERSES DISMISSALS OF menacing with unmuzzled dogs, religious ment in the last six years. DETAINEES’ CASES abuse, and racial harassment. None of

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MEMBERS OF EUROPEAN Commissions Act of 2006. However, that since their return to . The released PARLIAMENT SUPPORT majority vote failed to reach the votes detainees were identified as Fawazi No- RESETTLEMENT FOR necessary to defeat a Republican filibuster aman Hamoud, Ali Muhsen Saleh Nas- GUANTÁNAMO’S REFUGEES against the amendment. In the U.S. Con- ser, Sadeq Mohammad Saeed Isameel gress, a filibuster can prevent the closure and Hani Abdu Musleh Shulan. Amnesty On September 26, 2007, at a press con- of debate if there is not the support of 60 International has appealed to President Ali ference held at the European Parliament Senators. Abdullah Saleh to release Guantánamo in Strasbourg, 68 members of the Euro- returnees who are being held in Yemeni pean Parliament supported a call by CCR The Center for Constitutional Rights re- prisons without charges or trial. and the International Federation for Hu- leased the following statement following man Rights (FIDH) for European Union the vote: NEW YORK TIMES REPORTS ON countries to resettle Guantánamo detain- SECRET TORTURE MEMOS ees at risk of being transferred to countries “The Center for Constitutional Rights, where they are likely to face persecution which represents many of the detainees at On October 4, 2007, The New York or torture. Guantánamo Bay and coordinates the Times reported that the U.S. government is work of more than 500 pro bono attor- still holding people at CIA black sites after EU leaders have condemned the lawless- neys working on the detainee cases, ap- purporting to end the program a year ness of the Guantánamo detentions on plauds the principled decision of 56 sena- ago, and is generating secret memos to numerous occasions. Yet, to date, only tors today to support the restoration of the propagate a program of so-called Albania - one of the poorest countries in right of habeas corpus to detainees held "enhanced interrogation techniques" that Europe - has accepted a small number of in U.S. custody. in reality qualify as torture and cruel, inhu- Guantánamo's refugees who could not man and degrading treatment. safely be returned to their home country. “We saw today that a majority of our In early August, in a landmark policy senators realize that stripping away a According to the report, in 2005, despite change, the British government also called basic right such as habeas corpus from previous public statements declaring tor- for the release of five non-nationals and anybody means that everyone's rights are ture to be “abhorrent both to American their resettlement in the UK. Four of these at stake. law and values and international norms,” men had previously applied for or been the Justice Department drafted two internal granted asylum due to fears of persecu- “This is but one small step that Congress memos providing a legal justification for tion in their home countries. must take to restore the Constitution after brutal interrogation methods. the passage of last year's damaging Mili- FIDH, CCR, and a multiparty coalition of tary Commissions Act, and to ensure that The first of these secret memos was alleg- European Members of Parliament called justice is served for the detainees at edly approved personally by then- upon all EU member States to intervene Guantánamo Bay. While this was not Attorney General Alberto Gonzales over and ask the U.S. authorities to resettle in enough support to overcome a Republi- the objections of then-Deputy Attorney EU countries Guantánamo detainees who can filibuster, it is an important sign that General James Comey. It provided ex- are either trapped at Guantánamo be- there is increasing support for restoring the plicit authorization to barrage terror sus- cause they have nowhere to go, or who rule of law. We must preserve an individ- pects with a combination of painful physi- will be returned to torture or persecution in ual's right to challenge an executive de- cal and psychological tactics, including their home countries. tention. In a democracy, no President head-slapping, simulated drowning and should have the right to label someone, frigid temperatures,” the Times report said. MAJORITY OF SENATORS lock them up and throw away the key.“ SUPPORT HABEAS CORPUS DESPITE REPUBLICAN FILIBUSTER YEMENI PRESIDENT CALLS FOR In a second secret memo produced in the RELEASE OF YEMENI DETAINEES summer of 2005, the Deparment of Justice On September 19, 2007, the U.S. Senate argued that CIA interrogation methods did voted on an amendment to restore the During a visit to the United States, Yemeni not violate pending legislation that would right to habeas corpus for Guantánamo President Ali Abdullah Saleh called for the prohibit “cruel, inhuman or degrading and other detainees, introduced by Sena- release and repatriation of all remaining treatment.” Prior memos from the Justice tors Arlen Specter, Patrick Leahy and Yemeni detainees held at Guantánamo Department authorizing “enhanced interro- Christopher Dodd as an amendment to Bay. Ninety-four Yemeni detainees remain gation techniques” had previously come the Defense Authorization Bill. at the U.S. naval base’s detention facility. to light; however, these new memos were produced following the exposure of the The 56-43 vote signaled the support of a In other news, Yemeni authorities have abuse of prisoners at Abu Ghraib, the majority of Senators for the ancient right of released four former Guantánamo detain- resulting scandal, and the Bush administra- habeas corpus, suspended by the Military ees after more than three months in prison tion’s disavowal of torture.

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NEW CHARGES FILED AGAINST right to a speedy trial nor is the accused against 20-year-old Canadian DETAINEE UNDER MILITARY required to be informed of the charges Guantánamo detainee , COMMISSIONS ACT against him or her within any particular which he had dismissed in a June ruling time frame. due to a fundamental procedural flaw in On October 11, 2007, military prosecu- the Guantánamo military commission proc- tors filed charges against Mohammad CHIEF MILITARY PROSECUTOR ess. Jawad, a Pakistani detainee who was RESIGNS AFTER REPORTS OF living in Afghanistan at the time he was DISPUTES WITH OFFICIALS Khadr, like all other detainees at picked up and taken into U.S. custody. Guantánamo, was designated an “enemy Jawad is accused of attempted murder, On October 5, 2007, chief military prose- combatant’” however, his Combatant for his alleged involvement in throwing a cutor Col. Morris Davis resigned his posi- Status Review Tribunal made no determi- hand grenade at a U.S. military jeep car- tion immediately following reports of inter- nation as to whether he was an “unlawful” rying military personnel in Afghanistan in nal Pentagon debates about the military combatant, a distinction necessary for 2002. commissions and charging detainees. prosecution under the Military Commis- sions Act. However, the review court’s Jawad is the fourth detainee to be According to press reports, forces within ruling allows the military commission itself charged under the Military Commissions the Pentagon were pressuring Col. Davis to rule on a defendant’s combatant status Act of 2006, the law that created the and his staff of prosecutors to produce before proceeding to a commission. current military commissions procedure as new charges against detainees quickly, well as containing a host of other provi- and to include bold terrorism accusations The review court’s decision reinstates the sions affecting detainees’ rights to access that would draw positive public attention charges against Khadr, who was picked the courts and obtain a hearing. In un- to the military commissions process, which up in Afghanistan when he was 15 years sealed portions of Jawad’s Combatant has been widely criticized by the legal old, and , another detainee Status Review Tribunal (CSRT) held at community, the press and the public. whose case was dismissed, and opens Guantánamo, he alleges that he con- the door for the filing of new military com- fessed to participating in the grenade Col. Davis asserted that attempts by supe- missions charges. Khadr’s attorneys have attack after torture by Afghan police and riors to exert control over the types of filed an appeal with the U.S. Court of guards. charges filed damaged the integrity of the Appeals, seeking to overturn the Court of process. Davis' statements indicate that Military Commissions Review’s decision. To date, no full military commissions have the level of influence exerted by military about the news briefing.. yet taken place. The first detainee to be officials over the prosecutions is high, as This news briefing is produced monthly by charged, , arranged for a well as the potential influence of political the Center for Constitutional Rights, the plea agreement in which he pled guilty to concerns on the military commissions. New York City-based non-profit legal and several charges in exchange for a 9- educational organization dedicated to month sentence, after which he was re- The dispute within the Pentagon about the protecting and advancing the rights guar- turned home to Australia; he served this military commissions illustrates the fragility anteed by the U.S. Constitution and the sentence after five years of imprisonment and complications of the military commis- Universal Declaration of Human Rights. without trial. The next two detainees to be sions process, a process that circumvents CCR coordinates the representation of charged, Salim Hamdan and Omar many legal protections and rights detain- detainees at Guantánamo Bay with a Khadr, had the charges against them dis- ees would receive in federal criminal network of over 500 pro bono habeas missed by a military juge; however, these courts, and with far more expansive charg- counsel. It is translated into Arabic and charges were recently reinstated by an ing authority than courts-martial under available online at appeals panel. (See below.) military law, and indicates that disputes within the government about the future of http://www.ccrjustice.org/ Military commissions under the MCA do the military commissions process continue. reports/Guantanamo-newsletter not satisfy fundamental due process re- If you would like to receive this newsletter, quirements, and their procedures differ MILITARY CHARGES REINSTATED send us more information, or get in con- tact: markedly from criminal trials and courts- AGAINST KHADR AND HAMDAN; Center for Constitutional Rights martial under milirary law. Evidence ob- APPEALS TO FOLLOW 666 Broadway, 7th Floor tained through coercion may be used New York, NY 10012 against defendants, and secret evidence On September 24, 2007, the new Court http://www.ccrjustice.org/ is allowed against defendants. Crimes not of Military Commissions Review ruled that (212) 614-6443 considered war crimes may be tried by a military judge must reinstate the charges military commission. In addition, there is no [email protected]

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