Category: Terrorism

Reflections on a Conversation with Mohamedou Ould Salahi

Africa, Enforced Disappearances, Guantanamo, Human rights, Terrorism, Torture, UNCAT, USA

On 14 March 2022, the Global Justice Academy hosted a conversation between Mohamedou Ould Salhi, author of the best-seller Guantánamo Diary, and Dr Kasey McCall-Smith, director of the Global Justice Academy. The event was part of Mohamedou’s United Kingdom tour to talk about his experiences and what happens in the aftermath of torture and arbitrary detention. In the conversation, Mohamedou and Dr McCall-Smith, together with the audience’s participation, reflected on the post-9/11 human rights legal and political landscape.

Mohamedou was born in Mauritania, and as a young man studied and worked in Germany and Canada before moving back to Mauritania in 2000. Between 2000 and 2001, he was three times detained at the behest of the United States, questioned about the so-called “Millennium Plot”, and later released. However, in November 2001, Mohamedou was arbitrarily arrested in Mauritania, later transferred to Jordan and then Guantánamo Bay. Mohamedou eventually spent 15 years arbitrarily detained and was subjected to multiple forms of torture and ill-treatment under the ‘enhanced interrogation programme’. He was ultimately released without any charge or any form of redress by the US.

In his best-selling book, Guantánamo Diary, Mohamedou tells a Mauritanian proverb about a man who was afraid of a rooster. As the story goes, a psychiatrist asks this man why he is afraid of a rooster, an animal considerably smaller than human beings. The man replies that the rooster thinks he is corn. The psychiatrist says that the man is not corn, but a man indeed, so he should not be afraid of the rooster. Then, the man answers that he knows he is not a corn, but the rooster does not, which is why he is afraid. Unfortunately, this is the allegoric story about the many US ‘War on Terror’ detainees. Mohamedou and many other detainees tried for years to convince the US government that they were not terrorists just because they filled the ‘terrorist boxes’. In other words, they tried to convince the rooster they were not corn. Without access to fundamental human rights it was an almost insumountable task.

The event’s central theme was the conflict between national security and human rights. Through the ‘War on Terror’, led by the US after the events of 9/11, many men were arbitrarily incarcerated and tortured in order to gather information with the aim of protecting national security. These arbitrarily detained men, most of them Muslim, were deprived of their basic human rights, including the prohibition of torture and access to justice. The post-9/11 era is marked by states’ overwhelming concern for national security over human rights. Consequently, people are subjected to many forms of human rights infringements. Such abuses vary significantly from the most imperceptible and sometimes even consented breaches, such as infringements to the right to privacy and or access information, to the most gruesome violations as experienced and narrated by Mohamedou, including torture and ill-treatment, arbitrary arrest, inaccessibility to justice, and presumption of guilt instead of innocence.

One of the most shocking observations Mohamedou shared was the absence of justice and the rule of law in Guantánamo Bay. After years of being incarcerated without criminal charge or prosecution, Mohamedou petitioned for habeas corpus and was granted a release order in 2010. However, Mohamedou was only released in 2016. The six-year gap between the court order and its compliance is the result of the US judicial system’s lack of power in the Guantánamo Bay detention facilities. Although judges may grant habeas corpus orders, the judicial system does not have the power to enforce them. According to Dr McCall-Smith, the unreasonable amount of time it took for Mohamedou’s release indicates the disconnect between the US justice system and the organs that wield power in the context of national security. Even after his release, Mohamedou still faces the shadows of his arbitrary detention as the US keeps him blacklisted.

Guantánamo Bay must be closed.

In closing the event, Mohamedou and McCall-Smith discussed possible ways to move forward after the horrifying human rights violations perpetrated in the ‘War on Terror’. First, McCall-Smith and Mohamedou agreed that Guantánamo Bay must be closed. Of the 780 men detained in Guantánamo Bay, 38 men are currently imprisoned there, and less than 20 men have been charged with a crime, let alone convicted. The Obama administration promised to close Guantánamo, but only the US Congress has the power to do so. Thus, in this particular situation, McCall-Smith pointed out that the US ‘checks and balances’ system worked against the rule of law. Second, Mohamedou highlighted the necessity to hold accountable those who violated international law and the prohibition on torture. Without accountability, there is no possibility of democracy as the people become powerless in the face of the government. Finally, Mohamedou stressed the importance of forgiveness and reconciliation through actions. More than a beautiful thought, this idea entails states’ responsibility to reflect and reconsider the undermining of human rights as the formula to guarantee national security. Mohamedou’s experiences and scholarly debates have both shown that the suppression and outright violation of human rights has not guaranteed the security of peoples or states.

The recording of the event can be viewed here.

This post is authored by Helena de Oliveira Augusto. Helena is currently undertaking the Human Rights LLM at the University of Edinburgh. Helena is from Brazil, where she completed a Bachelor of Laws degree at the Pontifical Catholic University of São Paulo.

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Off the Record: Medical Records in the 9/11 Military Commission

Blog, Global Justice Academy, Guantanamo, Health, Human rights, Inequalities, International Law, Law and Legal, Punishment, Terrorism, Torture

This post continues the 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.

Personal Data and National Security: Medical Records in the 9/11 Military Commission

Almost since the inception of the 9/11 military commissions, defense lawyers have fought to obtain the full medical records of their clients. In any normal court, a client’s ownership and access to their personal medical records would go unchallenged. The right to privacy is fairly clear on this. Whether relying on the Fifth and Fourteenth Amendments of the US Constitution or article 17 of the ICCPR, individuals have the right to control their personal medical information with some exceptions (notably those outlined in HIPAA in the US). However, in the largest criminal justice trial in US history, access to medical records is shrouded in secrecy and national security privilege is reinforced through redactions to files covering even the simplest of medical treatment, such as providing ibuprofen for pain relief.

Joint Task Force Guantánamo, the cross-branch military force created by the US Department of Defense to run detention operations in Guantánamo, is responsible for assessing and delivering care for the medical needs of all detainees. As a result, it maintains full medical records on the 40 men still held in the detention facility. Government prosecutors also have copies of the full records. However, neither the defendants, nor their attorneys, are able to gather a full account of their medical information because full access is consistently rejected by the Government in the name of national security.

The complete medical records sought begin with those documenting the intake of the defendants in 2006 when they arrived in Guantánamo following years on CIA black sites. The records covering the medical treatment of the five 9/11 defendants is crucial to the case due to the systematic torture they endured at the hands of the CIA and the statements of guilt some are alleged to have given to the FBI shortly after arriving in Guantánamo. The physical and psychological impact of the enhanced interrogation techniques on the men, as documented in the Senate Intelligence Committee Study on CIA Detention and Interrogation Program (SSCI Summary Report) further speaks to a range of issues that are highly relevant to the trial, not the least their ability to participate in their own defence and their competence to even be in the dock.

A primary point of contention comes in response to the public availability of the record of torture, inhuman and degrading treatment the defendants suffered on black sites. The SSCI Summary Report is very clear on the issue of the defendants’ treatment. The CIA shredded all pretence in terms of legality with regard to the treatment of these five men and many others. Constructing an understanding of their physical and mental states in the lead up to the FBI interrogations in January 2007 will shed light on whether those statements may be excluded as torture evidence, an issue that remains unclear at the close of the 35th round of pre-trial hearings.

Redacted medical records

While there is a great amount of writing and authority on the issues of confidentiality, privacy and security of medical records, those discussions are predominantly focused on keeping personal records closed for the benefit of the patient. In the 9/11 case, the reverse is true. Defense teams have spent years trying to gain full access to their clients’ personal medical files. In many instances it is not only about their variable litigation strategies but also about helping explain their client’s individual health issues to them more fully. As has often been raised in court, a number of the defendants suffer conditions akin to post-traumatic stress disorder and there have been suggestions of brain damage following MRI scans, all indicia of the ill-treatment they endured in CIA captivity.

Trial counsel for the government has turned over 47.000 pages of medical history to the defendants relating to medical, psychological, dental or therapist visits since their arrival in Guantánamo. The problem is that all of the documents are redacted to some extent and predominantly it is medical personnel identifiers that are removed. With the exception of seven real name examples Government counsel acknowledged as ones he had ‘missed’ in error, all names have been replaced by unique medical identifiers (UMIs) or redacted to obscure the identification. The UMIs include designators such as Dr Shrek, SMO (Senior Medical Officer) and Dr 10. More vexing for defense counsel is the fact that several of the UMIs are not unique at all. As counsel argued before the commission, in the course of their examination of the records provided by the Government, it has become clear that the same UMI was used by different medical professionals in some cases and in others individuals had used different UMIs in a haphazard way. This inconsistency frustrates defense efforts to piece together a clear picture of their clients’ physical and mental states when they arrived fresh from their years on black sites as they are unable to corroborate the information derived from the incomplete reports.

Persistent threats to medical personnel?

The Government contends that these men pose a direct threat to the safety of medical personnel and their families. It is an interesting argument considering the defendants’ long-term address in the top-secret, maximum security Camp 7 where the very limited communication they have with the outside world is subjected to extensive security and classification reviews. Government counsel went as far as to claim that threats against medical personnel are made ‘practically every day, certainly at least once a month’, suggesting that they were made by the men for whom the military medical corps has provided care for roughly 11 years. It is unlikely that evidence of these ‘threats’ will ever be seen by the public. Such evidence, if it exists, may be proffered through ex parte submissions to the judge anytime prosecution invokes the national security privilege. Defense efforts to substantiate claims of the threats have been fruitless and, according to counsel, none of the few medical personnel that have been tracked down have suggested that they were ever threatened in the course of their treatment.

In-court exchanges suggest that all government explanations of medical records are to be taken at face value despite multiple proffers of error by defense counsel. The more bizarre fact is the Government admission in previous commission exchanges that medical records including the names of medical professionals, is not classified material. Even if classified, or marked as sensitive, the legal team members all have the clearance to view the full documents. In a case heavily dependent on classified material, it is not uncommon for the cleared lawyers to access materials for investigation purposes without sharing the information with their clients. It, therefore, boggles the mind that the Government continues to deny defense counsel information necessary to fully investigate each defendant’s case. It seems solely obstructive that defense counsel is forced to argue for access to full medical records bit by bit as the responsive records provided after each successful motion provides only a bit more information than before. Very simply, the Government should provide unclassified information when requested through discovery.

The tussle over complete medical records appears to be a circular exercise. No logic can explain the stalemate in relation to complete medical records for the 9/11 defendants. And with a third judge due to assume control of the case at the 36th round of hearings in June 2019, the issue is likely far from over.

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

Blog, Conflict, Crime and Criminal Law, death penalty, Global Justice Academy, Guantanamo, Human rights, incarceration, Law and Legal, Punishment, Terrorism, Torture

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. 

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The Shadows of Torture: Reporting from Guantánamo

Human rights, incarceration, International Law, Law and Legal, Punishment, Terrorism, Torture, USA

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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Keeping Guantánamo on the Map

Human rights, International Law, Law and Legal, Student Ambassadors, Terrorism, Torture, Uncategorized

Vivek Bhatt, a Student Ambassador with the Global Justice Academy (GJA), has written this blog following a panel event he attended at the Edinburgh Law School. The event, hosted by the GJA, explored the continuing relevance of legal and political issues arising from detention at Guantánamo Bay.

The United States acquired control of Guantánamo Bay in 1903, when it entered into an agreement with Cuba for the perpetual lease of the 45 square mile area.[1] Guantánamo Bay has since been operated as a naval base, and in the 1990s, it was ‘refashioned as a detention camp for those seeking asylum in the United States.’[2] From 1991 to 1996, more than 20,000 Cuban and 36,000 Haitian asylum seekers were interned in Guantánamo Bay.[3] And, in November 2001, merely days after the declaration of a ‘global war’ against terrorism, a US Military Order authorised the indefinite detention and trial of ‘enemy combatants’ at the camp. The US promptly began transferring individuals captured during its international counterterrorist operations to Guantanamo Bay. A total of 770 have been held there through the course of the war on terrorism. Only 8 men have been convicted, with more than 500 released during the Bush administration, 198 released during Obama’s presidency, and 9 killed in custody. 41 remain in detention, with 14 considered high value detainees and 26 designated as ‘forever prisoners,’ individuals whose knowledge of practices at Guantánamo Bay renders them too dangerous to be released.

The legal justifications provided for detention at Guantánamo Bay have been vague, at best. Those transferred to the camp are characterised as ‘enemy combatants’ under the laws of armed conflict, even though many have been captured outside areas of fighting.[4] The camp’s location in Cuba has, furthermore, allowed officials to assert that detainees are not entitled to the protections of the US legal system. According to Harold Koh, Guantánamo Bay is effectively a ‘rights-free zone’ constructed by the US. [5] Its detainees, writes Agamben, ‘[Are] legally unnameable and unclassifiable beings.’[6] After the release of the Senate Intelligence Committee’s report on CIA torture in 2014, it was finally confirmed that many of these detainees have been subjected to ongoing torture practices as part of their interrogation. The camp has, therefore, come to symbolise the legal and ethical dubiousness of the war on terror, with the ‘visceral image’ of the orange Guantánamo jumpsuit now engrained in public memory and popular culture.[7] Fifteen years on, however, International attention to the legal and political issues arising from detention at Guantánamo Bay is waning. Some, it seems, believe the worst is over, while others may simply have accepted that the goings on at the camp are part of an inevitable, ‘new’ reality of the war on terror.

This was the topic of ‘International Law and Guantánamo Detention Operations: Why it Matters,’ a panel event hosted by the Global Justice Academy and the Edinburgh Law School on 9 February 2017. The event aimed to examine the range of international law and human rights issues relating to detention operations in Guantánamo Bay, and was opened by Kasey McCall-Smith, lecturer in public international law at the Edinburgh Law School. Dr McCall-Smith provided an overview of the breaches of international law at Guantánamo Bay. She began by pointing out that the United States is not solely responsible for these breaches; the international community has facilitated the detention programme at Guantánamo Bay, and has failed to react to the grave violations of human rights that have occurred there. The violations of human rights at Guantánamo Bay begin with rendition flights, which transport terrorists to the camp for interrogation, and have been allowed to land at various airports throughout Europe. Various areas of international law are relevant to rendition, but particularly the prohibition of enforced disappearance. Once at Guantánamo Bay, detainees have been denied their right to visits from a consular official of their national State, protected under Article 36 of the Vienna Convention on Consular Relations.[8] As Dr McCall-Smith pointed out, various provisions of the International Covenant on Civil and Political Rights have also been violated in the course of detention and interrogation at Guantánamo Bay. These include the right to non-discrimination,[9] the right to liberty and security of person,[10] the right to be heard before a court,[11] and the right to be treated with respect for the inherent dignity of the person.[12]

Meanwhile, Jacques Hartmann, a senior lecturer in Law at the University of Dundee, spoke of his research into arbitrary detention in non-international armed conflicts. This topic is particularly relevant to Guantánamo Bay, given that most of those taken to the camp are captured as enemy combatants. To Dr Hartmann, the detention of suspected terrorists at Guantánamo Bay is symptomatic of a much larger problem: the lack of treaty provisions that explicitly address detention in non-international armed conflict. The lack of an express provision leads many to infer the authority to detain from the authority to use lethal force. Yet Dr Hartmann warned against such inferential reasoning, reiterating that any detention without legal justification is arbitrary, and is thus prohibited under both international human rights and humanitarian law.

As suggested above, the most widely discussed human rights violation at Guantánamo Bay is the continued use of torture. This was the focus of an address given by Dr Mitch Robinson, an international law specialist at the United States Department of Defense. He characterised Guantánamo Bay as a concentration camp; the only people detained there since November 2001 have been Sunni Muslim men. Dr Robinson spoke of one of his clients, a Saudi national who was accused of financing terrorism, and was in the CIAs’ torture programme for three and a half years. Though reports from early questioning suggested that he ‘does not appear to be a financing mastermind,’ the client was repeatedly deprived of sleep, sodomised and water-boarded, among other things. Robinson proposed a strategy for global human rights litigation relating to Guantánamo Bay. He refers to this strategy as ‘collateral advocacy’ for detainees’ human rights through domestic courts, regional human rights bodies, the UN’s human rights treaty bodies and high commissioner for human rights, international non-governmental organisations, civil society, and the application of legal or diplomatic pressure by other States.

Andrea Birdsall, lecturer in international relations at the University of Edinburgh, pointed out that as the international community has become aware of torture practices in Guantánamo Bay, the US government has moved along a ‘continuum of denials.’ This began with literal denial, a phase in which the Bush administration simply argued that the US Government does not commit acts of torture. This was, however, challenged by the release of the torture memos,[13] which made clear that torture was being used as a government policy. This led to ‘interpretive denial,’ in which it was argued that detainees were not subjected to torture, but to ‘enhanced’ or ‘increased pressure’ phases of interrogation that did not entail the ‘near-death’ experiences that would constitute violations of international or US domestic law. In the final stage, ‘implicatory denial,’ it was admitted that ‘mistakes had been made’ in the interrogation of suspected terrorists, but it was argued that the measures taken were justifiable in times of crisis. To Dr Birdsall, the US government’s treatment of terrorist suspects does not signify the demise of the anti-torture norm. Instead, the discourse surrounding Guantánamo Bay has legitimised the international law prohibition of torture, reinforcing a shared global understanding of the prohibition’s non-derogability.

The panel concluded that the programme of detention and interrogation at Guantánamo Bay warrants continued attention from scholars, lawyers, governments, and international civil society. There are three reasons for this conclusion. Firstly, violations of human rights are ongoing; Article 14 of the Torture Convention, for example, requires States parties to rehabilitate victims of torture, an obligation the US government has not fulfilled in relation to Guantánamo detainees.[14] Secondly, Guantánamo Bay is unlikely to be closed in the foreseeable future, and conditions may in fact worsen in coming years. And, finally, the prominence of human rights violations at the camp presents an opportunity for scholars and practitioners to reflect upon the state of the international rule of law, and to reify the value of the fundamental rights protected within the international legal order.

About the author

Vivek Bhatt is an Edinburgh Global Research Scholar, and is reading for a PhD in Law. He holds an MSc in Political Theory from the London School of Economics and a Master of International Law from the University of Sydney. Vivek’s research interests span public international law, international political theory, and counterterrorism. His current research relates to the engagement of individuals in the international legal system through the course of the war on terror.

[1] Fleur Johns, ‘Guantánamo Bay and the Annihilation of the Exception’ (2005) 16(4) The European Journal of International Law 613, 616.

[2] Ibid.

[3] Ibid.

[4] Mary Ellen O’Connell, ‘The Choice of Law Against Terrorism’ (2010) 4 Journal of National Security Law & Policy 343, 353.

[5] Quoted in Joan Fitspatrick, ‘Spekaing Law to Power: The War Against Terrorism and Human Rights’ (2003) 14 European Journal of International Law 241, 242.

[6] Giorgio Agamben, State of Exception (Kevin Attell trans., University of Chicago Press, 2005) 3.

[7] This phrase was used by Mitch Robinson, a panelist at ‘International Law and Guantánamo Detention Operations: Why it Matters’, hosted by the Global Justice Academy and Edinburgh Law School on 9 February 2017.

[8] Vienna Convention on Consular Relations, signed 24 April 1963, 596 UNTS 261 (entered into force 19 March 1967) art 36.

[9] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 2.

[10] Ibid art 9(1).

[11] Ibid art 9(4).

[12] Ibid art 10(1).

[13] See, for example, Philippe Sands, ‘Torture Team: The Responsibility of Lawyers for Abusive Interrogation’ (2008) 9 Melbourne Journal of International Law 365, 366.

[14] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) art 14.

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

Atrocities, Evidence, Human rights, incarceration, Law and Legal, liberty, Punishment, Terrorism, Torture, USA

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

Atrocities, death penalty, Evidence, Human rights, incarceration, Law and Legal, liberty, Punishment, Terrorism, Torture, USA

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

Human rights, incarceration, Law and Legal, liberty, Punishment, Terrorism, Torture, USA

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

Human rights, incarceration, Law and Legal, Punishment, Terrorism, Torture, USA

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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Counter-Terrorism, Radicalisation, and the University: Debating the Prevent Strategy

Edinburgh, Global Justice Academy, Human rights, Law and Legal, Student Ambassadors, Terrorism, UK, Victimisation

On Friday 15 January 2016, the Global Justice Academy and the Centre for Security Research at The University of Edinburgh hosted a panel discussion on the Prevent Strategy obligations that have been placed on higher education institutions. GJA Student Ambassador, Rebecca Smyth, went along to the debate and outlines the debated arguments as well as her thoughts on this contentious issue in this guest post.

A thing of nothing or something more sinister?  Under section 26 of the 2015 Counter-Terrorism and Security Act universities must “have due regard to the need to prevent people being drawn into terrorism.”  The origins of this ‘Prevent’ duty, and its potential implications for staff and students, were considered at a panel discussion organised by the Global Justice Academy and Centre for Security Research last Friday.  Chaired by Akwugo Emejulu, the panel comprised Gavin Douglas, Deputy Secretary of Student Experience here at the University of Edinburgh; Richard Jones of the School of Law; Genevieve Lennon of the University of Strathclyde Law School; Urte Macikene, EUSA Vice President of Services; and Andrew Neal of the Politics and International Relations department.

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