UNHS SCISA Expert Kasey McCall Smith (Professor of Human Rights Law at the University of Edinburgh) writes on current cases involving prisoners kept at Guantánamo.
In my last post, the use of evidence obtained through torture in the case of US v. Khalid Shaikh Mohammad, et. al. (KSM case) was introduced. This post further considers how torture impacts detainees held at Guantánamo and the 9/11 trial. An interesting addition to the already complex pre-trial considerations is the possible appearance of a detainee who has not been seen in public since he was rendered into the custody of the CIA. Abu Zubaydah, a Palestinian, is believed to have been taken into CIA custody in 2002 following his capture in Pakistan. After three years on a CIA ‘black site’, he was delivered to Joint Task Force-Guantánamo (JTF-GTMO) in 2006 where he remains a High Value Detainee (HVD) despite never having been charged with a crime. As characterised by former FBI agent, Ali Soufan, Zubaydah is the ‘original sin’ of the US in its post-9/11 anti-terror campaign.
The Senate Intelligence Committee Study on CIA Detention and Interrogation Program(Torture Report) delivers the contours of the treatment Zubaydah suffered as the test case, or ‘person zero’, of the CIA Enhanced Interrogation Techniques (EIT) programme for gathering information at any cost, including breaches of long-standing law of the US and international law. As a result of the brutalities Zabaydah suffered, including 83 instances of waterboarding, and potential incrimination of those responsible, it is believed by many that he will be held in detention indefinitely even if charges are never filed.
Zubaydah was one of two defence witnesses due to appear in support of a pre-trial motion addressing claims raised by Ramzi Bin al Shibh, one of defendants in KSM, that Camp 7 guards continue to harass him in his cell to the extent that it is psychological torture. However, following the morning testimony of another witness, Somali-born Hassan Guleed, Zabaydah’s testimony was delayed until the next scheduled hearing in July. Guleed, who has been held since 2004 without charge and is not represented by counsel, also alleges that the conditions of the secret Camp 7, where all HVDs are held, amount to mental torture.
During his testimony he went as far as drawing a distinction between the torture currently being suffered and that which was suffered at the CIA black sites, where he was held for two and one-half years before landing in GTMO. On cross-examination, the prosecutor went to great pains to try and get Mr Guleed to confess to being an enemy of the US in order to undermine his testimony in support of Mr Bin al Shibh’s claim. Zabaydah’s lawyer fully committed to advising his client to not respond to the prosecutor’s provocations as permitted by the Fifth Amendment to the US Constitution. This move was in direct response to the direction the prosecution’s questioning had taken earlier in the day with the first witness.
The public appearances of these two witnesses were important for several reasons:
First, it is an opportunity for some small sliver of recognition by the public, primarily through the media in attendance, that there are men that remain imprisoned in a secret facility, without charge. A state of detention that allows detainees to walk unshackled only in their cells. Defence counsel noted in the first minutes of questioning Mr Guleed that on that day, walking from the door of the courtroom to the witness stand, it was the longest the man had walked unshackled in twelve years. An unfathomable situation for a man that has yet to be charged with any war crime or act of terrorism.
Camp 7 remains a facility that no person can easily access. It is reported that only two defence lawyers have ever visited Camp 7 and they remain under a gag-order to not discuss its conditions due to the camp’s classified nature. Thus, this testimony gives a small glimpse into the confinement conditions of the men housed there.
Second, the actual testimony regarding the alleged activities that continue to affect a number of the HVDs, including those mentioned above, speaks to torture in two ways. Either guards or other persons (possibly CIA) continue to act in breach of the law on torture or that the previously, well-substantiated instances of torture committed against these men has had such a profound impact on their mental well-being that they are no longer able to separate the present from their past. Either way, it is a damning confirmation of the EIT authorised by the US government during the dark years following 2001. If it is determined that the alleged noises and vibrations plaguing certain Camp 7 prisoners are in fact taking place, then the US will once again need to revisit the break-down in the chain-of-command from the Commander-in-Chief to the detention facility guards.
In the meantime, the defence lawyers will do their best to ensure that the minimum standards for detention are observed. As mentioned in a previous blog, in May 2016, the defence team for Mr al Baluchi, one of whom has actually been able to visit secret Camp 7, filed a motion to compel JTF-GTMO to allow the UN Special Rapporteur on Torture to inspect Camp 7 and conduct private interviews with KSM defendants. The motion clearly sets out the acknowledgement of the US government that torture and cruel, inhuman and degrading treatment are prohibited on and off US territory, including the detention facility at GTMO.
It is hoped that the judge will rule quickly on the question of full access, a key component of the Special Rapporteur’s conditions. It is doubtful, however, that the decision will come before the next round of hearings are concluded in July.
It is only with examination and confirmation of the Camp 7 conditions by an external investigator that the US will be able to substantiate their claims of humane detention at Guantánamo.
Want to find out more?
Keep up to date through Amnesty International: https://www.amnesty.org.uk/guantanamo-bay-human-rights