‘We Need to Talk About an Injustice’: Bryan Stevenson delivers Ruth Adler Lecture at University of Edinburgh

Law PhD Candidate, Vivek Bhatt

In this guest post, Law PhD Candidate, Vivek Bhatt, reflects on Bryan Stevenson’s visit to Edinburgh Law School to give the 2019 Ruth Adler Memorial Lecture, and to receive an honorary doctorate as part of the School’s summer graduation ceremony.

Bryan Stevenson (c) Nick Frontiero Photography 2019

 

 

 

On 8 July 2019, the Global Justice Academy hosted a lecture by Bryan Stevenson, recipient of an honorary doctorate at the Edinburgh Law School.  Stevenson is founder of the Equal Justice Institute (EJI) in Montgomery, Alabama, and a clinical professor at the NYU School of Law. Stevenson works as a legal representative for disadvantaged and marginalised individuals, particularly young and poor people who are on death row or serving life sentences. He and his colleagues at the EJI have achieved the exoneration or release of over 125 individuals on death row. Stevenson is also the author of Just Mercy: A Story of Justice and Redemption,[1]  which was a New York Times bestseller and won the Carnegie Medal for the best nonfiction book of 2014.

Stevenson’s lecture circulated around a question that is as succinct as it is complex: how do we, as human rights advocates, address injustice? Firstly, he said, we must create justice by becoming proximate to those suffering inequality and injustice. Recounting his relationship with his grandmother, who wished that Stevenson would always be able to feel her embracing him, the skilful orator argued that we must know and seek to understand those who suffer injustice in order to affirm their humanity and dignity. Thus, human rights practice is not about the deployment of legal arguments from afar, but rather about stepping away from one’s legal expertise and embracing those who suffer violations of dignity.

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Off the Record: 9/11 Military Commission in its 7th Year

This is the third post in a blog series by Dr Kasey McCall-Smith which examines some of the contentious legal issues raised in the US v. Khalid Shaikh Mohammad, et. al. military commission proceedings against the five men charged with various war crimes and terrorism in relation to the 11 September 2001 attacks on the US. The series is a continuation of her project ‘Torture on Trial’ which was funded by a grant from the Royal Society of Edinburgh and is supported by the Edinburgh Law School.

Whatever Happened to the Alleged 9/11 Terror Plotters? 9/11 Military Commission in its 7th Year

The largest criminal justice trial in US history is currently taking place on Naval Station Guantánamo Bay. For the most part, the general public has no idea. Apart from consistent media coverage by a small handful of journalists, including Carol Rosenberg (formally of The Miami Herald and now with the New York Times) and John Ryan of Lawdragon, the US public and the formerly vocal academy have forgotten that five men, Khalid Shaikh Mohammad, Khallad bin Attash, Ammar al-Baluchi, Ramzi Bin Al-Shibh and Mustafa al-Hawsawi, are charged with conspiracy to commit various war crimes and terrorism in relation to the September 11th attacks under the Military Commissions Act 2009 (MCA) in United States v. Khalid Shaikh Mohammad, et al. (9/11 case). In previous blogs I have explained the choice of venue for the detention facility, law of war detention, details on some of the detainees, and addressed issues relating to torture. This series looks in more detail at specific issues in the trial and why controversial legal stand-offs may not go away.

The first incarnation of the military commissions were replaced by the MCA following the US Supreme Court decisions in Hamdan v. Rumsfeld and Boumediene v. Bush. The MCA applies to alien terrorist suspects and members of al Qaida, defined as alien ‘unprivileged enemy belligerents’, rounded up from 2002-2008, though recently there has been talk of the potential use of the statute to detained ISIS fighters.

 

The MCA sets out its applicability to offences before, on and after 11 September 2001 and raises questions about the long-standing principle of no ex post facto laws and the creative addition of ‘conspiracy’ to accepted war crimes definitions. The statute combines different and overlapping issues of military law, constitutional law and international law. Observing the 9/11 hearings, the failure to thoroughly evaluate the relationship between these different legal systems is proving problematic in every aspect of the trial’s slow progress. The only clarity lies in the fact that legislative responses to 9/11 were walled off from the realities of the outrageous conduct of the CIA during its Rendition, Detention and Interrogation programme.

According to the Senate Intelligence Committee Study on CIA Detention and Interrogation Program (SSCI Report), it is well documented that Khalid Shaikh Mohammad was subjected to combinations of ‘enhanced interrogation techniques’, so-called EITs, equating to torture designed to exercise total control over the victim. Notably, he suffered periods of sleep deprivation lasting up to 180 hours and was ultimately waterboarded 183 times. The other four defendants were similarly treated. Bin Al-Shibh was subjected to EITs for approximately 34 days and kept in social isolation for almost 2.5 years. Bin Attash and al-Baluchi were subjected to EITs over a period of months. The CIA waterboarded al-Hawsawi and further subjected him to such brutal bodily treatment that he suffers irreparable physical damage. In short, US agents subjected each of them to a sustained and systematic programme of torture in direct violation of US and international law.

The illegal actions by the US were defended by the then Bush Administration as necessary to national security. When rumours and then evidence of ill-treatment began to leak out of US military bases abroad, international civil society and US civil rights groups called for the US, as well States working in concert with the US, to maintain detention and treatment standards demanded by the law. In particular, the customary Law of War and standards outlined in the Geneva Conventions as well as the Convention Against Torture were frequently invoked. Yet as the first detainees arrived in Guantánamo on 11 January 2002 these well-established rules appeared to be the furthest thing from the US government’s mind. For anyone watching as the first goggled and shackled jumpsuit-clad men dropped to their knees in the Cuban heat it was clear that this would be a long game. Of the approximately 780 men that were detained in Guantánamo since it opened the doors to the now defunct Camp X-Ray (pictured below), only 40 remain. One man (Balhul) is serving his sentence following conviction by military commission, 26 are known as ‘forever prisoners’ and eight are currently under charge, including the 9/11 defendants. The 9/11 charge sheet alleges that the defendants committed conspiracy, attacked civilians, and committed murder in violation of the Law of War, intentionally caused serious bodily harm, hijacked an aircraft, and committed acts of terrorism resulting in the deaths of 2.976 along with countless injuries. Following their arraignment on 5 May 2012, intentionally causing serious bodily injury was struck from the charges in the early months of the case. From the outset, issues regarding public access to the trial were raised. Limited public access to close circuit broadcast sites was offered to families soon after the litigation commenced. Though now only a trickle of viewers attend the 40 second delayed live-streams at Fort Meade, Fort Devens and Fort Hamilton. The roster of media and civil society observers at Camp Justice, too, can only be described as small when compared to the original outpouring of attention on the detention activities in Guantánamo.

In its 7th year of pre-trial proceedings, the 9/11 case is bogged down in a range of issues (see subsequent posts) that challenge the rule of law to its very core. How to reconcile the defendants’ status as both alleged terrorist war criminals and torture victims? Does US ‘reinterpretation’ of war crimes definitions square with the law of war? Can an appropriate balance between the alleged crimes and victimhood be achieved? Will the victims of 9/11 ever get the justice they deserve and, if so, at what cost? Seventeen years after the horrendous acts that markedly shifted western governments into a new era of aggressive national security pursuits, it seems that only time will tell. At the conclusion of the 35th round of hearings, we are left only with questions. 

Off the Record: Unlawful Influence on the War Crimes Proceedings

This is the second post in a blog series by Dr Kasey McCall-Smith examines some of the crucial legal issues and broader public questions raised regarding the US v. Khalid Shaikh Mohammad, et. al. military commission proceedings against the five men charged with various war crimes and terrorism in relation to the 11 September 2001 attacks on the US. The series is part of her project ‘Torture on Trial’ and funded by a grant from the Royal Society of Edinburgh.

In the 9/11 war crimes trial taking place in Guantánamo, an array of motions have been filed regarding unlawful influence on the US v. Khalid Shaikh Mohammad, et. al.(9/11 case) proceedings. They began with complaints regarding statements by then-President Obama and continue to the present with complaints regarding President Trump, Secretary of Defense Mattis, former Attorneys General Sessions and Holder and CIA Director Gina Haspel. These motions, all based on section 949b of the 2009 Military Commissions Act, cover a range of statements and actions.

During the April-May 2018 proceedings, the influence of current US President Trump was raised as lawyers debated the influence of statements made by Trump as the commander in chief of the US military. The relevant statements focused on the president’s response to the Bowe Bergdahl v. US courts martialand also the 31 October 2017 New York incident where an alleged terrorist drove a van onto a bike path killing eight people. Trump’s statements on the campaign trail and after his election were also potentially problematic for the 9/11case and attacked the integrity of the military justice system. His statements and twitter posts explicitly called into question the administration of justice and constitutional protections in the US. Defence counsel in the 9/11 war crimes tribunal argue that collectively these successive statements by US presidents and other government officials equate to unlawful influence (UI), a concept drawn from provisions in the US Uniform Code of Military Justice prohibiting Unlawful Command Influence (UCI). UI is a concept set out in 10 USC §837 and article 37 of the UCMJ and is deemed the ‘mortal enemy’ of military justice and also violates due process as guaranteed by the US Constitution and the right to a fair trial under Article 14 of the International Covenant on Civil and Political Rights (ICCPR). The concept applies here as the governing law of the trial is the Military Commissions Act 2009 (MCA 2009) – combining rules of military, domestic and international law – and the president is the constitutional Commander-in-Chief of the US military.

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Off the Record: Observations on the 9/11 Military Commission

This blog series by Dr Kasey McCall-Smith examines some of the crucial legal issues and broader public questions raised regarding the US v. Khalid Shaikh Mohammad, et. al. military commission proceedings against the five men charged with various war crimes and terrorism in relation to the 11 September 2001 attacks on the US. The military commissions are in the sixth year of the pretrial phase and taking place at a purpose-built Expeditionary Legal Complex in Camp Justiceon Naval Station Guantánamo Bay, Cuba. The series is part of her project ‘Torture on Trial’ and funded by a grant from the Royal Society of Edinburgh.

Taking a Step Back – A Primer on the International Prohibition against Torture

Many members of the public not trained in international law fail to understand why the international prohibition against torture matters or should matter in the US legal system. This post seeks to explain how international law on the prohibition against torture relates to US law and the impact of the prohibition on the military commission proceedings against the five men charged with conspiracy and war crimes in relation to the 9/11 terrorist attacks on the US in US v. Khalid Shaikh Mohammad, et. al.(9/11 case).

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Incarceration in Scotland: a system with positive evolutions in need of a generalisation of its good practices

In this guest post, Coline Constantin reflects on the recent seminar that tackled issues around incarceration in Scotland. Coline is reading for an LLM in Human Rights at Edinburgh Law School, and applied for funding for this event from the Global Justice and Global Development Academies’ Innovative Initiative Fund.

Scotland has the second highest imprisonment rate in Europe. Although English headlines for issues of overcrowding, under staffing, rising rates of self-harming cases do not find an echo north of the border, the statistic still makes it worth taking a closer look at its system. On Thursday 26 April, an engaged audience gathered at the University of Edinburgh to hear more about the positive developments and challenges of the Scottish system of detention.

Three panellists from different fields of expertise and different view angles on the Scottish situation were invited to cover topics from policy-making, to the implementation and analysis of these policies. Professor Richard Sparks, Convenor of Howard League Scotland and criminologist specialised on the different systems of detention in the UK, took us through his analysis of the particularities of the Scottish case within the UK and European context. Tom Halpin, Chief Executive of Sacro and prominent figure in the reduction of inequalities in the Scottish criminal justice system, gave us a sense of the work that is being done with communities and specific groups of people with convictions to go towards better mentoring and guidance throughout the process. Pete White, Chief Executive of Positive Prisons? Positive Future and fascinating storyteller, treated the audience with a story of his personal experience from his time inside and the aftermath of this life-changing event.

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The Shadows of Torture: Reporting from Guantánamo

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.

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Getting to Grips with Guantánamo IV: Person Zero & Camp 7

KMSThis post is by Kasey McCall-Smith: a lecturer in Public International Law and programme director for the LLM in Human Rights at Edinburgh Law School.

This post is the fourth in a series of blogs that chronicle the history and current state of play regarding the US rendition and detention programme in the immediate aftermath of 9/11. They were written during the author’s visit to Guantánamo Bay, Cuba, to observe military commission proceedings in the case of USA v. Khalid Shaikh Mohammad, et. al.  30 May – 3 June 2016, which is the initial phase of her project Getting to Grips with 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.

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Getting to Grips with Guantánamo III: Torture Evidence

KMSThis post is by Kasey McCall-Smith: a lecturer in Public International Law and programme director for the LLM in Human Rights at Edinburgh Law School.

This post is the third in a series of blogs that chronicle the history and current state of play regarding the US rendition and detention programme in the immediate aftermath of 9/11. They were written during the author’s visit to Guantánamo Bay, Cuba, to observe military commission proceedings in the case of USA v. Khalid Shaikh Mohammad, et. al.  30 May – 3 June 2016, which is the initial phase of her project Getting to Grips with Guantánamo.

Right now, on a small island in the Caribbean, what will ultimately be one of the most comprehensive examinations of torture is taking place in the form of a military commission proceeding in the case of US v. Khalid Shaikh Mohammad, et. al. (KSM case). A common understanding among the observers that are witnessing KSM is that half are there to see the 9/11 trial and half are there to see the torture trial. In anticipation of what many view as a foregone conclusion, the defence lawyers are diligently representing their clients in order to ensure that if the ultimate penalty, death, is pursued in the sentencing phase of the trial; then the brutality that they suffered at the hands of the CIA is in the trial record. This record will be instrumental to mitigation of the death penalty and speak to the reality that much of the evidence presented may have been extracted or derived through torture, which is prohibited under international law.

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Getting to Grips with Guantánamo II: Military Commissions & Law of War Detention

KMSThis post is by Kasey McCall-Smith: a lecturer in Public International Law and programme director for the LLM in Human Rights at Edinburgh Law School.

This post is the second in a series of blogs that chronicle the history and current state of play regarding the US rendition and detention programme in the immediate aftermath of 9/11. They were written during the author’s visit to Guantánamo Bay, Cuba, to observe military commission proceedings in the case of USA v. Khalid Shaikh Mohammad, et. al.  30 May – 3 June 2016, which is the initial phase of her project Getting to Grips with Guantánamo. Click here to read the first post in the series: ‘Rendition to the Caribbean’.

The military commission proceeding against the 9/11 five in the case of US v. Khalid Shaikh Mohammad, et. al. (KSM case) is viewed as having parallel purposes, bringing justice to the nation and victims’ families for the terrorist attacks of 9/11 and laying bare the flagrant torture campaign under the US Central Intelligence Agency’s (CIA) post-9/11 Detention and Interrogation Program (DIP). The KSM case stems from charges filed on 31 May 2011 against the five men charged with conspiracy, murder and destruction of property in violation of the law of war for the conception and facilitation of the 9/11 attacks which resulted in the deaths of close to 3000 people. The subsequent ‘war on terror’ launched by the Bush administration in the aftermath set in motion a ruthless anti-terrorism campaign by the CIA that has been acknowledged by the US government as comprising widespread use of torture in breach of both US domestic law and international law.

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Getting to Grips with Guantánamo I: Rendition to the Caribbean

KMSThis post is by Kasey McCall-Smith: a lecturer in Public International Law and programme director for the LLM in Human Rights at Edinburgh Law School.

This post is the first in a series of blogs that chronicle the history and current state of play regarding the US rendition and detention programme in the immediate aftermath of 9/11. They were written during the author’s visit to Guantánamo Bay, Cuba, to observe military commission proceedings in the case of USA v. Khalid Shaikh Mohammad, et. al.  30 May – 3 June 2016, which is the initial phase of her project Getting to Grips with Guantánamo.

Following the attacks against the US on 9/11, then-President Bush declared open-season on all individuals with any established link to al Qaeda. In furtherance of the Bush declaration, the US Central Intelligence Agency (CIA) commenced what would eventually prove to be the most egregious and calculated rendition and detention campaign in modern, post-WWII history. A campaign defined by blatant breaches of both US and international law. To this day, it serves as a black mark on America’s international image, and the resulting impact of the decisions taken by the Bush Administration in the early days of 2001 continue to resonate today.

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