This series of blogs presents a number of the legal issues raised at the April – May 2018 military commission proceedings against the alleged plotters of the 11 September 2001 (9/11) terror attacks against the US in the case of US v. Khalid Shaikh Mohammad, et. al. taking place at Camp Justice, Guantánamo Bay Naval Station, Cuba.
The author, Dr Kasey McCall-Smith, is conducting a research project entitled Torture on Trial, which is funded by the Royal Society of Edinburgh.
1. The Shadows of Torture
When people speak about torture and the war on terror, the most egregious and publicly decried acts generally pop to mind: waterboarding, walling, sleep deprivation, and so on. As the military commission proceedings in case of US v. Khalid Shaikh Mohammad, et. al. (KSM case) unfold, less examined examples aspects of torture reveal the irreversible physical and mental impacts on victims of such abuse.
In 2016, counsel for Ramzi Bin al Shibh, the alleged deputy plotter of the 9/11 terror attacks on the US, presented a motion claiming military guards at Joint Task Force Guantánamo (JTF-GTMO) continue to psychologically torture their client. The claim presented that guards at the secret Camp 7 facility vibrate his cell, keep the air conditioning on too high and inflict loud noises resulting in sleep deprivation amounting to mental torture. His claims, which two years later remain unresolved, have been recently exacerbated and led to behaviour resulting in disciplinary action in Camp 7. In this instance, disciplinary action meant removal from his normal cell to stricter solitary confinement, where he was given nothing but a Koran and a thin mat for sleeping. In response to this, Bin al Shibh’s situation was further degraded resulting in increased friction with the guards and alleged threats to impose treatment reminiscent of that received on black sites during the US Rendition, Detention and Interrogation (RDI) programme. Furthermore, his access to his legal materials and correspondence with his attorneys was severely restricted.
Bin al Shibh’s lawyers argue that guards are operating outside the Standard Operating Procedures (SOPs) for the camp and might have breached the prohibition against torture outlined in Common Article 3 of the Geneva Conventions, as well as the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture (UNCAT). Bin al Shibh, who has been on hunger strike for some weeks, claims that guards have increasingly threatened him with force-feeding (by an undetermined method), confinement to a padded room, and indicated that the SOPs no longer apply to him – effectively suggesting that he has no rights. If true, then it is clear that Bin al Shibh continues to be tortured or, at the very least, is being subjected to cruel, inhuman or degrading treatment despite US and international law prohibitions, as well as standing orders of the military commission judge.
The US Constitution (5th, 8th and 14th Amendments), the 2005 Detainee Treatment Act (42 U.S.C. §2000d(d)), the Military Commissions Act 2009 (the law governing the commission), the ICCPR, the UNCAT as well as customary international law prohibit torture and other cruel, inhuman or degrading treatment (collectively ‘ill-treatment’). Solitary confinement has intermittently been interpreted as torture or other ill-treatment on the specific conditions of the confinement. While very common (though not commendable) in the US, European case law generally examines a range of factors to make a determination of legality, including:
- the particular conditions,
- the stringency of the measure,
- the duration of confinement,
- the extent of sensory or social deprivation, and
- the objective pursued and its effects on the person concerned (see, for example, Case of Ramirez Sanchez v. France, Application No 59450/00 (Grand Chamber) Judgment of 4 July 2006, para 120).
Unlike many of the European cases that have found the conditions of solitary confinement not to rise to the level of a breach of the prohibition of torture, for a number of reasons, Mr Bin al Shibh’s treatment should raise a red flag. In particular, the many years he spent on black sites in CIA confinement including years of solitary confinement, sensory deprivation and repeated torture – as outlined by the US Senate Intelligence Committee Study on CIA Detention and Interrogation Program – that completely dehumanised him and stripped him of all dignity, not to mention leaving him both physically and mentally scarred. Thus any punishment administered against him must take into account his special circumstances. From the allegations raised this week, guards are specifically playing to Bin al Shibh’s vulnerabilities by re-enacting the situation of helplessness and constant threat he experienced on the black sites, resulting in severe mental anxiety.
As revealed in court on 30 April 2018, the continued ill-treatment of Bin al Shibh has led to the breakdown of relations with his legal team which ultimately impedes their ability to provide effective counsel. His chief civilian attorney, Learned Counsel James Harrington, has suggested that if the existing military commission order to cease harassing Bin al Shibh is not observed, he will be unable to continue as counsel for the accused after more than six years because he will not be able to mount an effective defence in line with the US Constitution and ICCPR article 14 (more on this in the next post in this series). This would no doubt be a serious setback for the on-going proceedings.
This seeming retrogression in preserving the prohibition against all forms of ill-treatment in Guantanamo comes only a few days after a London-based anti-torture organisation CAGE, announced its plan to seek the indictment of Ali Soufan, a former CIA-agent-come-anti-torture advocate, through universal jurisdiction for his role in torture that took place in a military brig in Charleston, South Carolina. This was shortly followed by a similar move by lawyers in South Africa. The shadow of torture from the RDI programme permeates every aspect of the 9/11 military commissions and, it seems, will continue to resonate inside and outside of Guantánamo until justice is served.