Khadr Trial Delayed Amidst Reports of Plea Deal

Yesterday, the military judge overseeing the flawed military commission proceedings against Omar Khadr, who has been in U.S. custody since age 15, postponed the start of the trial by a week. The trial is now scheduled to begin Monday, October 25th at Guantánamo.

The delay came amidst reports that negotiations are underway on a possible plea agreement that would avert the trial.  There is much speculation in the media about what the terms of the deal might be, and who so far has signed off on it.

While the trial might be coming to an end for Khadr, the obligation of US authorities to ensure remedy and reparation for any human rights violations that have been committed against him does not end here.

Also, the fact that the military commission system falls short of international fair trial standards is not changed by whether a plea deal is reached in Omar Khadr’s case.

Regardless of what happens with Khadr, Amnesty International will continue to call on the US to abandon the unfair and flawed military commissions and bring any Guantánamo detainee it intends to prosecute to trial in ordinary civilian federal court, in accordance with international fair trial standards.  Any detainee it does not intend to prosecute should be immediately released.

The trial of Omar Khadr began in August but came to an abrupt halt after his military defense lawyer collapsed on the first day.  The trial is flawed because it is not happening in a real court. Omar Khadr has been tortured, threatened with rape, and denied basic legal rights. Yet despite all that, his fate hangs outside a traditional judge and jury and rests with politicians and military personnel.

Amnesty International delegates have attended military commission proceedings conducted at Guantánamo over the years, including in Omar Khadr’s case. If proceedings do go ahead on October 25th, as currently scheduled, we’ll have representation there to observe the proceedings.

Amnesty International members around the world have been and continue to call for the USA to abandon Omar Khadr’s military commission trial and on the Canadian authorities to call for his repatriation. You can join us by taking action here.

Ghailani and the Torture Trail

Daniel P. Moynihan U.S. Courthouse (c) Spencer Platt/Getty Images

There is something stately about the Daniel P. Moynihan courthouse in lower Manhattan, it rests between the bustle of Chinatown and the Brooklyn bridge.  Early Tuesday morning, commuters and traffic whirled by as usual, not noticing the few camera crews that had bothered to show up.  A terrorist trial was supposed to bring the city to its knees, but in the early morning the only flurry to be seen were the graceful movements of a group of elderly Chinese ladies doing Tai Chi in the park across the road.

The wheels of justice turn slowly but inexorably in one of the most fascinating cases to see the inside of a US courtroom in recent years.  Ahmed Ghailani is on trial for his role in the 1998 US Embassy bombings in Kenya and Tanzania.  The heinous murder of 224 people, mainly Africans, whose only crime was to turn up for work as usual on August 7, 1998.  They included Rosie Mwangi, who tried to comfort another victim for two days even as she lay dying trapped in the rubble of the secretarial school where she worked next door to the embassy in Nairobi.

It was a wicked and cowardly act, so shameful that Al Qaeda tried to justify it later by saying the genocide in Rwanda was planned inside the embassies, to mask their complicity.  Twelve years later the victims of the bombing may finally get to see justice in a US Court.  Three others have been successfully convicted and are safely imprisoned in Florence, Colorado, no more a threat to society than Charles Manson or the Unabomber.

But for any observer there is also an unsettling Kafkaresque subtext to this trial.  Post 911, Ghailani was caught in Pakistan in 2004 and then he was placed in what the CIA euphemistically called the “High Value Detainee Program”. According to the court he was tortured in custody, the fruits of which have already infected the trial, and the testimony of a key witness – Hussein Abebe – has been thrown out.

But in justifying his decision to exclude the tainted evidence, Judge Kaplan said Ghailani’s status as an “‘enemy combatant’ probably would permit his detention as something akin to a prisoner of war until hostilities between the United States an Al Qaeda and the Taliban end, even if he were found not guilty in this case.”

To be clear, if Ghailani is found guilty he will go to jail, and if he is found by some legal quirk to be not guilty .. well …he will go to jail.  While this may reassure a few, it should concern us all,  the point of a trial ought to be to determine the facts and pronounce a sentence, or in this case vice versa.

When a society seeks to deprive someone of their liberty through a legal process, it is a reflection not only on their actions but our own laws and values. In weighing Ghailani on the scales of justice it is clear that there is more that hangs in the balance than just his fate.  But it is not clear what, if any, message we send to the world when in the name of combating terror we come close to cutting at the core of our own values.

In an age when an enemy deliberately and coldly picks at a defenseless target like Rosie Mwangi, it is easy to feed the climate of fear.  In an earlier time against a different enemy, Edward R. Murrow once said , “We proclaim ourselves, as indeed we are, the defenders of freedom, wherever it continues to exist in the world, but we cannot defend freedom abroad by deserting it at home.”

Protests and Police Intimidation at Khaled Said Killing Trial

By Sally Sami, Regional Campaign Coordinator for Amnesty International’s Middle East and North Africa Programme

The second session of the trial of two policemen accused of beating Khaled Said to death started in Alexandria on Saturday, marred by the heavy presence of security forces.

The court was surrounded by uniformed anti-riot officers and cordoned off with metal railings. Both entrances were guarded by plain-clothed police officers who only let lawyers into the building.

The court was surrounded by uniformed anti-riot officers © Amnesty International

I arrived at the court just after 9am. Pushing my way through the crowd, I was stopped by a plain-clothed police officer who asked me for my Bar Association membership card.

I said I was not a lawyer and introduced myself as a representative of Amnesty International who wanted to observe the trial. The police officer refused my entry, insisting that I needed permission from the Head of the Court.

I tried to explain that the lawyers were waiting for me inside and that I had a letter from Amnesty International to present to the court. Again he refused me entry. I asked if I could meet the Head of the Court and get permission but he said no.

I was pushed back and plain-clothed police officers started aggressively pushing the crowd, nearly causing a stampede. I tried to negotiate my entry with the police officer again, telling him that in no country where the rule of law prevails would police have such control over enters the court. After all, aren’t trials supposed to be public, unless decided by a judge? If the authorities have nothing to conceal, why aren’t we allowed in to observe the trial? He said: “This is the way it is and if you don’t like it then leave the country”.

Behind the security forces on the steps outside the court, around 150 supporters of the police officers brandished wooden sticks and chanted insults about Khaled Said and his family, which were also directed at the 100 or so anti-torture protesters on the pavement.

Witnesses have reported that Khaled Said was beaten to death while in the hands of Egyptian security forces, in the city of Alexandria on Sunday 6 June.

Shocking pictures of Khaled Said’s body, whose face was almost unrecognizable in the morgue, were posted on the internet shortly after his death.


The Gambia, Where Persecution Has Replaced Justice

The following comes to us from Essa Bokarr Sey, the former Ambassador of the Republic of The Gambia to France (1999-2001) and to the United States (2002-2003). We asked him to share with us his perspective on The Gambia today, in light of this week’s Day of Action for Ebrima Manneh. To learn more about Amnesty International’s concerns about human rights in The Gambia, click here.

President Yahya Jammeh of The Gambia monopolizes power with excessive force. In The Gambia of today being an opposition or exercising one’s right towards freedom of expression is a considered social taboo. Fear is ruling our people without limits or respect for the rule of law.

In The Gambia three scary names are used to maintain the brutal Jammeh regime in power.

1) The NIA (National Intelligence Agency) is first on the list. It is known for abducting, torturing and killing Gambians who dare show their difference in political opinion before the regime’s modus operandi. The NIA was established as soon as the Jammeh regime came into existence based with reference to decrees that were promulgated by the Armed Forces Provisional Ruling Council. These special decrees empowered the NIA to arrest any Gambian upon suspicion and keep him or her for days without trial. They are still in full force. The latter contradicts the very essence of the Gambia constitution. Worst of all the NIA is directly answerable to the minister of defense who is President Jammeh, him being the hub of all abuses with the excessive use of power.

2) The state guard is a special squad composed of thugs and killers who run along the length and breadth of the country with unmarked vehicles. The latter can visit the residence of any Gambian at any time then abduct and incarcerate him or her while using harsh torture methods. Their callous and brutal methods started mushrooming from 1994 November 11 when officers of the Gambia National Army were summarily executed. Over the years many more were killed like former Lt Seye, former state guard commander Lt Almamo Manneh and others. Killings that are based on nothing other than speculation or whirling accusations which usually reflects suspicion from a paranoid leadership. These are crime scenes where clear indications have so far implicated the state guard beyond any reasonable doubt.

3) Third are the different locations where those abducted or kidnapped are kept incommunicado. The most dangerous are: Mile two central prisons, Jeshwang prisons, Jangjangbureh Prisons (an isolated island) where torture could include being exposed to mosquito bites and excessive heat in dark cells. Within the NIA premises also are dark dungeons like the Bambadinka–meaning the crocodile’s hole.

These three scary names are the pillars of President Jammeh’s regime of brutality. This is exactly why journalists like Ebrima Manneh are helpless and vulnerable. No single person can ever determine where detainees are kept with precision because the regime’s tactics includes transferring detainees from one undisclosed location to another only to escape inquiries from family members of the affected parties.

Refusing detainees access to legal representation and or visits from family members is definitely not uncommon in The Gambia today. The Jammeh regime exercises its strength by showing the detained and the family of the detained that absolute power lies in its hands but not within the hands of the judiciary. Court orders are not respected because re-arresting people who have been freed by a judge just outside the premises of the court house has been part of the regime’s merciless reactions during the past years. Indeed the above cannot be part of the modus operandi of a democratic regime. Therefore any regime which practices what is referenced here above is one that has no respect for the rule of law. That is why Gambians are scattered all over the world as asylees or refugees. Our country’s population is one of the smallest in Africa, however, the number of Gambians on exile is on top of the list in the continent. That certainly should be a cause for concern.

The recent report of Amnesty International entitled Gambia: Fear Rules speaks for itself. This same vein is the reason why six senators from the US senator on foreign relations signed a petition calling on the Gambian president to release Chief Ebrima Manneh. These are respected institutions who have no interest in staining the Jammeh regime for political reasons or any other one for that matter. Veterans like Senator Ted Kennedy are of course not into this for making names or controlling anything political. They are in it because what affects human life in The Gambia or any other part of the world attracts the attention of responsible leaders like the latter. President Jammeh’s legacy has already been stained like that of Idi Amin Dada and other former blood thirsty dictators. Along the way he will face his fate because international laws supersede the local Gambian laws he is manipulating to help maintain his ruthless regime.

Will the US Seek the Death Penalty in First Trial of a Former Guantanamo Detainee?

Last month, Ahmed Khalfan Ghailani became the first Guantanamo Bay detainee to be brought to the United States for trial outside of the military commission system.  His trial is set to begin in September 2010 in a regular federal court. While this is hopeful news for other Guantanamo detainees awaiting their day in court, if not their release, it also means that there is a possibility that the US government will pursue the death penalty should Ghailani be convicted.

Ahmed Ghailani, born in Zanzibar, Tanzania, was arrested in Pakistan in 2004 and brought to Guantanamo in 2006 for his alleged involvement with the 1998 bombings of the US Embassies in Tanzania and Kenya.  For two years he was held in secret detention by the Central Intelligence Agency, after which he was transferred to solitary confinement at Guantanamo and ultimately charged by a military commission in 2008.  Those charges have been dropped and he will now being tried in federal court on counts which include conspiring with Osama Bin Laden and other members of al-Qaeda to kill Americans, and charges of murder for each of the victims of the US Embassy attacks. Mr. Ghailani has pled not-guilty to all charges, saying that he was not a member of al-Qaeda and did not know about the attacks ahead of time.

Mr. Ghailani’s case may be a test of President Obama’s promise to shut down Guantanamo Bay, and may set a precedent for how similar cases might proceed. As a result, there will be a great deal of international attention given to his trial. It is especially important for the United States to demonstrate a commitment to human rights at this critical juncture by not seeking the death penalty for Ahmed Ghailani.

Additionally, the United States must investigate the conditions surrounding Mr. Ghailani’s enforced disappearance.  Such an investigation is required by Article 2 of the International Covenant on Civil and Political Rights (ICCPR), to which the US is a party. Any information obtained under conditions that violate international standards must be declared inadmissible in court, and a thorough investigation of Mr. Ghailani’s treatment in secret detention and at Guantanamo will be essential to ensuring he is given a fair trial.

Please urge the United States government to treat Ahmed Ghailani with humanity and fairness>>

Zimbabwe Justice: No Dancing Babies

The legal system in Zimbabwe isn’t comprised of lawyers in skimpy clothing sharing a unisex bathroom while litigating bizarre and yet fascinating cases. Instead, there is a politicized judiciary, draconian laws designed to stifle dissent and a prison system that would give Auschwitz a run for its money. Amnesty International is monitoring the legal cases of human rights defenders and political activists. Below is an update on some of these cases.

Women of Zimbabwe Arise (WOZA)-
The leaders of WOZA were arrested and jailed in October 2008 for disturbing the peace during a protest over food aid distribution. Their trial has been continually delayed by both the prosecution and due to a petition the women filed before the Supreme Court asking the charges be dismissed as unconstitutional as Zimbabwe’s Constitution guarantees the right of assembly. The leaders, Jenni Williams and Magodonga Mahlangu appeared in court yesterday where the magistrate wanted to proceed to trial despite this pending petition. The Supreme Court verbally ruled on June 4th that the arrest was unlawful but a written decision has not yet been produced. The case was finally postponed again until August 17th to wait for the ruling from the Court.

On June 18th, four members of WOZA were viciously beaten by police during a protest to call attention to the plight of informal traders struggling to make a living in Zimbabwe. Yesterday, a court in Harare ruled that the police officers responsible will be charged with assault. The case was postponed to July 13th to allow the officers time to prepare their case. The charges against the four WOZA members of disturbing the peace were dropped the day before.

Jestina Mukoko et al-
Late last year, Jestina Mukoko, head of the Zimbabwe Peace Project, was abducted from her home, illegally detained, tortured and charged with recruiting persons to participate in alleged militia camps in Botswana. She is one of 18 persons abducted and tortured around this same time and charged with variations of the same crime. On June 25th, the Supreme Court heard a petition from Ms. Mukoko and her co-defendants claiming their arrest was unconstitutional because they were illegally abducted and tortured. The Attorney General’s office admitted that Ms. Mukoko was illegally detained by state security agents but asserted that this should have no bearing on the case. A decision by the Court is still pending.

MDC activists and an independent journalist also on trial filed a petition before the Supreme Court asserting the same claim of unconstitutionality. At the hearing before the High Court, however, the State Security Minister took the opportunity to deny that the defendants, including Mukoko, were illegally detained. The petition was referred on to the Supreme Court. It is assumed that the remaining abductees will file similar complaints and their cases will be remanded until such time as the Supreme Court rules on the pending petitions.

Sri Lankan doctors "recant" prior testimony

A group of Sri Lankan doctors currently in detention were produced by the Sri Lankan government before the media today in order to recant their prior reports of civilian deaths during the last stages of the war between the Sri Lankan military and the opposition Tamil Tigers.  I’d written about three of these doctors in an earlier entry on this blog, expressing concern that their arrest by the government shortly after leaving the war zone was in reprisal for their earlier reports.  The doctors had provided eyewitness accounts from the war zone detailing the extent of civilian suffering earlier this year.

Since January, an intense military offensive by the government gradually reconquered all the territory once held by the Tigers.  In mid-May, the government announced that it had defeated the Tigers and recaptured all their territory.  Trapped in the war zone with the Tigers had been thousands of civilians who were prevented by the Tigers from leaving; some civilians who did flee were shot by the Tigers as they did so.  The government forces repeatedly shelled the war zone, despite the heavy concentration of civilians in an increasingly shrinking area.  The government denied that it had caused any civilian casualties.  Since the government barred independent observers and the media from the war zone, the doctors’ reports were one of the few eyewitness accounts available as to what was actually happening in the war zone.

Despite U.N figures of more than 7,000 civilian deaths this year, the doctors today said only 650-750 civilians were killed this year.  Their estimate also happens to be far below the Sri Lankan government’s own estimate – a Sri Lankan government official last month estimated 3,000 – 5,000 civilians had been killed.

The Sri Lankan government had said, and the doctors today asserted, that their earlier reports from the war zone had been given under pressure from the Tigers who then controlled the area they were in.  Consider this:  the doctors have been in detention by the government since mid-May and have yet to be charged.  At today’s press conference, they expressed hope that they might now be released.

Also consider that last week, Sri Lankan President Rajapaksa had said in an interview with the Indian newspaper, The Hindu, when asked why the doctors couldn’t be released now, “I told them to organize a press conference.  Let the doctors come and say what they have to say.”  You might think that that would mean that the doctors have now done what the President wanted, so they’d now be released.  But note that in the same interview, Lalith Weeratunga, Secretary to President Rajapaksa, had said about the doctors, “If they go scot-free, it will set a very bad precedent.”

If the doctors had been under pressure earlier from the Tigers while the fighting was going on, have they since been under pressure from the government to “recant” their earlier reports?  AI said today that the doctors’ statements were “expected and predicted,” since we feared that their detention by the government was intended to produce exactly the result we saw today.

I’ll repeat the request I made in my earlier entry about the doctors:  please write to President Mahinda Rajapaksa (Presidential Secretariat, Colombo 1, Sri Lanka, email:  [email protected]) and to the Sri Lankan Ambassador to the U.S. Jaliya Wickramasuriya (email:  [email protected]).  Please ask that the doctors be released immediately from detention unless they’re promptly charged with a recognizable crime.  They should be given all the medical care they may need, especially Dr. Varatharajah, as well as access to their relatives and lawyers of their choice.  Thanks for your help.

Obama Embracing Bush Legacy

The Obama administration is reportedly close to finalizing the outlines of a new preventative detention regime likely to be crafted along the lines proposed by Matthew Waxman in a paper released last week by the Brookings Institute.

Waxman’s paper tries to reconcile the supposed need for some form of administrative detention without trial with the Supreme Court’s Boumediene v Bush decision affirming the habeas rights of Guantanamo detainees and he proposes introducing legislation to create a new category of administrative detention subject to periodic judicial review.

An increasingly familiar pattern is once again being repeated. The administration ‘discovers’ that the issues it is facing are tougher than it had anticipated, sees some merit in the approach adopted by the Bush administration, promises to make some minor adjustments to preexisting conditions, and finally undertakes to implement this revised policy with a sensitivity the previous administration lacked.

However, such changes amount to little more than putting lipstick on a pig. Closing Guantanamo was always going to require taking some unpopular and morally courageous decisions but the President who declared in his inaugural address that he rejected the false choice between our safety and our ideals has sadly gone AWOL.

To codify administrative detention would be to perpetuate a system that has to date incarcerated more innocent people than it has men of violence on the basis of half-truths and innuendo.

The ordered release last week of Syrian-born detainee Abd Al Rahim Abdul Rassak al Janko provided further proof of the flimsy grounds on which many of the detainees at Guantanamo have and continue to be held.

Al Janko freely admitted staying for five days at a guest house run by Al Qaeda in 2000 and for a further 18 days at an Al Qaeda-run camp as a refugee making his way towards Europe. However, Al Qaeda militants suspected Al Janko of being a US spy and he was detained for three months and tortured until he admitted to these charges.

Al Janko was then handed over to the Taliban and imprisoned for a further 18 months. Having nowhere else to go, he remained behind in the prison after it was abandoned by the Taliban and was discovered there by US forces when they occupied Kandahar in the fall of 2001.

US soldiers also found a video which showed Al Janko being tortured by members of Al Qaeda. In true Kafkaesque style the video has been used by government lawyers as proof of his association with the group.

The Al Janko case demonstrates that arguments that the Obama administration will do a better job of separating the wheat from the chaff than their predecessors hold little water. In his scathing dismissal of the case, District Court Judge Richard Leon described administration lawyers as “taking a position that defies common sense” and it should be noted that this administration has fought Al Janko’s release tenaciously through the courts despite its manifest flaws.

We should not ignore the fact that it took a real court to make an effective determination about Al Janko’s status, and that this administration flunked that same test. Creating a legal framework for indefinite detention is a profound mistake. Since 1783 there has only been one standard in the United States for incarceration and that is conviction in a court of law.

Twice before in our history this standard has been ignored in times of crisis – during the Civil War and during World War II. The suspension of habeas corpus and the internment of Japanese Americans left a lasting stain on two of America’s most successful presidencies. The detention regime created at Guantanamo by President Bush added a third to a rather less illustrious presidency.

It is not too late to prevent the Obama administration repeating this mistake. Amnesty International USA has launched an online action campaign to petition President Obama to reconsider. We need your help to prompt a change of direction before fear mongering once again overcomes the angels of our better nature. Please visit our site today and add your voice to the thousands already raised in protest.