Shaker Aamer’s Homecoming: Leaving Legal Limbo at Long Last?

The last British resident is being released from Guantánamo Bay after being detained there illegally for almost 14 years. American authorities reportedly informed the Foreign and Commonwealth Office that US defence secretary Ashton Carter had authorised Aamer’s release on 25 September 2015. Shaker Aamer was never charged but was accused of terrorism. His lawyers maintain that he was never involved in any terrorism and was cleared of all wrongdoing eight years ago. Aamer is a 46-year-old Saudi Arabian national. He has indefinite leave to remain in the UK and is also married to a British citizen. Owing to his harsh predicament, he may be able to claim at least £1 million in compensation from the British authorities if he is able to prove that the UK was complicit with the US in his detention, rendition and mistreatment by US personnel.

Nevertheless, Carter reportedly sought assurances over security measures in relation to Aamer on his return to the UK despite Downing Street and the White House seeing eye-to-eye on the decision to release the Saudi. In 2001, Aamer and his wife Zin Siddique had moved from London to live in Taliban controlled Afghanistan. The couple have four children and Aamer has never met the youngest child. He claims that he was doing charity work and helping run a school but the Americans contend that he was a central figure in Tora Bora and that when Afghan militias captured him in Jalalabad in 2001 he was in possession of a false Belgian passport. (It is pertinent to recall that any school under Taliban rule would be a boys’ school because girls were forbidden from participating in education.) Thereafter he was tortured in Bagram airbase and shipped out to Guantánamo where he is said to have become a robust resistance figure commanding the respect of his fellow inmates.

His leadership was marked by the initiation and termination of coordinated hunger strikes. (Watch for example Guantánamo Bay: The Hunger Strikes by Guardian Animations and Force-Feeding in Guantanamo: Blacked Out Bay by Vice News for the absolutely brutal nature of the way hunger striking detainees are force fed, it is totally disgusting and we should not be surprised that so many young people are attracted to the cause of extremism because of these human rights atrocities by America.)

Overview

Aamer’s release to Saudi Arabia was approved in 2007 but the US delayed approving his release to the UK where his wife and four children are resident. After all, it was not without reason that former English law lord Lord Steyn called Guantánamo a “legal black hole”. Aamer is an interpreter who worked in Saudi Arabia for the US military prior to moving to the UK in 1996. The Bush administration ultimately acknowledged that it had no evidence against Aamer. We can only hope that he will be allowed to leave legal limbo expeditiously so that he is reunited with his family.

There are no Anarchists or Marxists in Guantánamo; numerous mullahs are/were detained there. But to be put in indefinite detention for decades on the ground that one is a mullah is totally unacceptable and the Americans can rant on about democracy and human rights: the sad truth is they, along with their British acolytes, have murdered the rule of law by their monstrous actions in the war on terror. Tagged as detainee 239, Aamer has a reputation for having developed a body of power among the detainees by resorting to Gandhian tactics of resistance such as hunger strikes. He was captured while fleeing from Kabul. His wife was pregnant with their fourth child when Afghan bounty hunters captured them and sold them on twice. Journalists investigating the Guantánamo story caught him on tape saying that:

Either you leave us to die in peace or either tell the world the truth. You cannot walk not even half a meter without being chained.

The news of his release came after he had been detained for 13 years, 7 months and 11 days which exactly matched his youngest son’s age on the day his release was confirmed. Indeed, Faris his fourth child – whom he has never met – was born the day he arrived at the camp.

Aamer’s thrilled 17-year-old daughter Johina said:

The news hasn’t hit yet. We can’t believe that we might finally see our Dad after 14 years.

America accused Aamer of being associated with al-Qaida cells in the UK and the US. According to American defence sources, the release was sanctioned subject to the caveat that a:

Through review of his case and taking into consideration the robust security assurances that will be provided by the British governments.

However, the British government is clear that Downing Street has regularly pressed Aamer’s case with the Obama administration and shares his commitment to shutting Guantánamo Bay down for good. Notably, another Saudi and committed Guantánamo hunger striker, Abdul Rahman Shalabi, who was accused of being Osama bin Laden’s bodyguard had to wait for 89 days notwithstanding the fact that he was cleared for release this June. Understandably, Aamer’s family adopted a cautious tone by explaining that:

We must still say this tentatively, as our hopes have been dashed before, but today is a good day. It is one that has been far too long coming. Shaker was cleared for release from Guantánamo in 2007 and has never faced any sort of a trial or been charged with any crime. We have been through a terrible ordeal and we ask the British and American governments not to prolong that ordeal any longer and tell us when we can expect our husband, father, and son-in-law to walk back into our lives.

Aamer’s legal team and family are keen to cut through any unnecessary red tape to secure his return as soon as possible to shorten their long ordeal.

On 17 March 2015, the British parliament voted unanimously for Aamer’s release and further delays are likely to make Cameron and Obama look impotent. If and when Aamer is flown home to be with his family, media sources say that it is expected that he will be flown into RAF Northolt, west London, and shall be released from that location. Despite some doubts hanging over his release, the requirement of giving a 30-day notice to Congress (before a detainee can be freed) means that late October is the earliest that Aamer could be reunited with his family. As regards the when the promise will actually materialise, well, only Allah knows better! Just today his lawyer Clive Stafford Smith bemoaned that When Shaker Aamer is free from Guantánamo the slurs will start and according to him it:

is not predictable is whether they will actually liberate him on 24 October, or some time much later on.

Claim and Counterclaim

Foreign policy and national security issues in the law courts make explosive study. For our purposes, a cogent exposition of the points that appeared to be in dispute can be found in the English administrative court’s decision in Aamer v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 3316 (Admin) (15 December 2009). Back then, some six years ago, Aamer maintained that he was first detained in Afghanistan in December 2001 by Afghan villagers, then turned over to Northern Alliance irregulars who in turn handed him over to the US military. He was flown by helicopter to Bagram and has been in US custody continuously ever since. Aamer alleged that during his detention at Bagram he was commonly beaten during interrogations. He claimed that he was subjected to cold water treatment, hog tying, sleep deprivation, threats of rendition to Egypt, Israel and Jordan and threats to his family.

He refered to one occasion, on which, after a few days of sleep deprivation, he was taken to an interrogation room. Aamer alleged that his interrogators included a member of the UK Security Service. On this occasion he contended that someone grabbed him by the head and started beating his head against a wall. He was threatened that if he did not tell the truth he would die. He complained that the member of the Security Service made no attempt to stop the ill-treatment and thereafter made no enquiries into his health or well-being.

On or about the 13 February 2002 he was flown to Guantánamo Bay where he has remained ever since. He alleges that during his time there he has been subjected to beatings, sleep deprivation, temperature extremes and has been denied access to fresh air and recreation. He also alleges that he has been left in solitary confinement for more than three years. From what is known, all his claims are true because Guantánamo is a disgrace to humanity.

Naturally, Aamer said that during his interrogations he made confessions. Although he is unable properly to recall those confessions, his legal representatives maintain, on the basis of an examination of documents disclosed to them, that he himself is the sole source of a substantial number of the allegations against him. The known allegations against Aamer include numerous allegations of involvement in fighting and training others for fighting between 1994 and 2001 in Bosnia and Afghanistan and allegations of connections with al-Qaida in the UK and the US. It was claimed that he is also said to have described himself as a terrorist who harbours great hatred for the US and Saudi Arabia and who would be willing to be a martyr for the cause.

Guantánamo Bay

Guantánamo was opened in the wake of the terrorist attacks in New York on 11 September 2001; it was used in the past to detain migrants and refugees. At least seven detainees have died there and 114 still remain. A total of 779 people have been detained in Guantánamo – where a US naval base covers 45 square miles in south-eastern Cuba – and 657 detainees have been returned to their home countries (Afghanistan 203 returnees, Saudi Arabia 124 returnees). Cuba leased Guantánamo Bay after the Spanish-American War and Washington pays Havana an annual rent of $4,085 for the territory albeit only one rent cheque was ever cashed, by mistake. Fidel Castro called the US presence in Guantánamo “illegal”.

The Bush administration, which started the prison camp, asserted that detainees were not entitled to any of the protections of the Geneva Conventions. However, later US Supreme Court decisions since 2004 have determined otherwise and that the courts have jurisdiction. For example, on 29 June 2006, in Hamdan v Rumsfeld 548 US 557 (2006) it ruled that detainees were entitled to the minimal protections listed under Common Article 3 of the Geneva Conventions. Subsequently, on 7 July 2006, the Department of Defense issued an internal memo stating that in the future detainees would be entitled to the protection afforded by Common Article 3.

Damages Claim

However, as noted above, former Guantánamo detainees have successfully sued the British government for damages. In 2010, rather than risk a legal battle that would have resulted in exposing intelligence information the government settled seven figure damages claims with 16 claimants – including Bisher al-Rawi, Jamil el Banna, Richard Belmar, Omar Deghayes, Binyam Mohamed and Martin Mubanga – who were detained in Guantánamo and argued that the FCO, MI5, MI6, attorney general and the home office played a part in, or failed to stop, their detention and ill-treatment and were complicit in their detention by US forces which could have been stopped.

The judges were clear that the government was not entitled to secrecy in the proceedings. Because no damages hearing could be heard in secret the courts had not been empowered by Parliament to withhold evidence from the claimants. This was so irrespective of the fact that like the other arms of government, courts have a duty not to do anything which risks national security, unless there is a very good reason. Yet, the judges thought that protecting the identity of government wrongdoers would be an affront to the principle of open justice and would potentially damage public confidence in the administration of justice: see, for example, R (Mohamed) v Secretary of State for Foreign & Commonwealth Affairs [2010] EWCA Civ 65 (10 February 2010) and R (Mohamed) v Secretary of State for Foreign & Commonwealth Affairs (Rev 1) [2010] EWCA Civ 158 (26 February 2010).

Rendition: A War Crime

In another interesting case, Yunus Rahmatullah a Pakistani national was abducted and tortured by British troops, then handed to the US and rendered to Bagram Airbase in Afghanistan. Rahmatullah said that he was blindfolded by British soldiers, punched and kicked, and hit with rifle butts. He also said that he was tied to a moving vehicle and dragged across the ground, waterboarded, and beaten unconscious. Raised in the Gulf and known by the alias Salah, in 2004, after major combat operations ended in that country, Rahmatullah went to Iraq to find work. In 2010, habeas corpus proceedings were filed in the UK to secure his release from detention.

He remained in Bagram for a decade until he was finally released in 2014. In Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah [2012] UKSC 48 (31 October 2012), the UK Supreme Court held that Rahmatullah’s rendition was a war crime and he was entitled to relief. Interesting ongoing litigation involving Rahmatullah about the International Security Assistance Force’s (ISAF) powers of detention in Afghanistan is reported as Mohammed & Ors v Secretary of State for Defence [2015] EWCA Civ 843 (30 July 2015) where it was held that UK armed forces participating in ISAF in Afghanistan had breached Afghan law and Article 5 ECHR (right to liberty and security) by detaining a suspected Taliban commander for 106 days beyond the 96 hours permitted by ISAF policy.

Comment

David Cameron and William Hague publicly made repeated pleas to the Obama administration for Aamer’s release. But other US defence secretaries remained reluctant to allow his release before Ashton Carter signed off the release papers.

It is interesting to observe that a trio of Omar Deghayes’s nephews – Abdullah, Amer and Jaffer – went to Syria to fight for Jabhat al-Nusra. Only Amer remains alive and his brothers have been “martyred”. However, he is not intransigent about returning from Syria but is unable to because Britons participating in foreign wars are subject to exclusion from the UK – under what is known as a “temporary exclusion order” under the terms of the Counter-Terrorism and Security Act 2015 which received Royal Assent on 12 February 2015. (God knows he may be killed in a UK drone attack like British jihadis Reyaad Khan and Ruhul Amin were in August 2015.) The participation of nearly 600 British citizens in Syria’s bloody war (and the return of half of such jihadis to the UK) has meant that domestic and international security risks needed to be mitigated. Or so the British government claims.

The Pentagon complains that many detainees who have been released from Guantánamo return to participating in terrorist activities. Anyway, in the longstanding saga of America’s brutal war on terrorism, which is a ready recruiting sergeant for the cause of jihad, we can only hope that Guantánamo’s Shaker Aamer comes home at long last. Indeed, his homecoming is long overdue.

Posted by Editor.

2 Comments

Filed under Al Qaeda, Courts, Pakistan, Pakistan Horizon, Politics, Taliban, United States

2 responses to “Shaker Aamer’s Homecoming: Leaving Legal Limbo at Long Last?

  1. Pingback: Navinder Sarao: ‘Flash Crash’ Trader’s Extradition Appeal Adjourned | Global Corporate Law

  2. Shaker Aamer released from Guantánamo Bay after 14-year detention, No 10 says no plan to detain British resident on return from imprisonment without trial in US military camp where he was beaten

    http://www.theguardian.com/world/2015/oct/30/shaker-aamer-released-from-guantanamo-bay

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