Ariel Myerstein, Human Rights Center Fellow REPORT FROM LONDON July…

Ariel Myerstein, Human Rights Center Fellow

REPORT FROM LONDON
July 2007


                             July 4, 2007 ­ 2,000 days of Guantánamo

On July 4, 1776, the founding generation of Americans declared themselves free and
independent from what they considered to be the despotic rule of the British crown. The absolute
power of the monarch was detested for its capricious and arbitrary nature, and above all, for the
lack of accountability to elected representatives that it was hoped a democratic system could
provide. In the centuries since that July 4th, the Declaration of Independence served as the
inspiration for the liberation of peoples of all different races, religions, and cultural affiliations.
Its bold proclamation that "We hold these truths to be self-evident, that all men are created
equal, that they are endowed, by their Creator, with certain Inalienable rights, that among these
are Life, Liberty, and the pursuit of Happiness," did not announce previously unconsidered ideas
or arguments, but, as Thomas Jefferson wrote, it did "place before mankind the common sense of
the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the
independent stand we are compelled to take."

It seems that this common sense has been forgotten as this July 4, over 200 years later, marks a
different occasion. It marks the 2,000th day of the operation of the United States' military prison
in Guantánamo Bay Cuba, where hundreds of men, including some who entered as children,
have languished without charge or a trial for over five years. This stark contrast between the
ideals upon which my country established itself and its current practice of arbitrary detention and
torture of many likely innocent individuals, prompted me to volunteer this summer at Reprieve,
an organization in London that serves as counsel for 40 Guantánamo prisoners from sixteen
different countries. (Reprieve refers to the men not as detainees but as prisoners, since this more
accurately reflects their situation.)

I decided to volunteer at Reprieve after reading an email from one of its lawyers, Zachary
Katznelson, about his recent investigatory trip to Jordan, where he interviewed one of his client's
families to gather background information. The client in question had married his wife and then
headed off to Pakistan and Afghanistan to study. Shortly after the U.S. invasion of Afghanistan,
he was handed over by the Northern Alliance, the U.S.'s allies against the Taliban, and then sent
off to Guantánamo, probably after stops in secret detention centers scattered throughout the
world. Like many detainees, this man tried to flee Afghanistan once the U.S. invasion started, but
he got caught in the Northern Alliance's snares (the U.S. had offered a $5,000 bounty for all
individuals captured and handed over, a practice that obviously created incentives for the
Northern Alliance to be sloppy and overzealous in rounding up individuals).

When I was reading the email, Zachary's client had been in Guantánamo for over four years,
during which time his son was born. Somehow the child had imagined that Zachary's visit was
not simply about his father, but was actually his father's return home. So during the visit, the
child walked into the living room where Zachary was interviewing the family, looked back and
forth between Zachary and his interpreter and asked, "which one is my father?" Since the media
has reported so little about Guantánamo beyond what the military and administration tell them,
this anecdote was one of the first times I was able to connect with the plight of the detainees on a
personal level, to appreciate their situation as human beings with families that worry about them.
As a new lawyer with a background in human rights, I had the basic skills to do something about
their situation, so I volunteered.

I could have not have chosen a more exciting time to volunteer here. As a result, my first month
at Repreive has presented me with a comprehensive human rights lawyering experience, which
has entailed legal research and writing; corresponding with clients; political and media advocacy
at the national, international, and supranational levels; and collaborating with human rights
groups all over the world. Already in four short weeks I have been exposed to the challenges of
being a human rights lawyer working on complex global issues, as well as the roller coaster of
emotions--moments of hope and encouragement sliding into moments of discouragement and
despair--that arises from working towards social justice.

The first week of my internship saw several developments in the global fight against
Guantánamo and the abuses committed there. The day I arrived in London, the Council of
Europe (an international organization of several dozen countries, founded after World War II to
maintain and promote the common ideals of democracy and freedom shared by European
societies) released a much anticipated report on several European countries' involvement in the
illegal practice of "extraordinary renditions." "Extraordinary rendition" is essentially a
kidnapping; the CIA or another intelligence agency grabs a person anywhere in the world and
moves them to a remote location outside that country, without following any form of procedural
due process.

The Council of Europe report revealed that the Central Intelligence Agency had operated "black
site" prisons in both Romania and Poland with the assistance of those countries' governments.
The report also detailed the existence of a similar detention center on Diego Garcia, a British
territorial island, on which the United States maintains a military base (decades before, the
islands' indigenous population was forcibly removed from there and the other islands of the
Chagos archipelago of which it is a part). The report also mentioned that other countries,
including Austria, Belgium, Cyprus, Denmark, Germany, Greece, Ireland, Italy, Poland,
Portugal, Romania, Spain, Sweden and the United Kingdom, had given the United States
permission to fly the detainees over their airspace. Two weeks later, in the last week of June
2007, the Council of Europe formally voted to adopt the findings of the report. Following the
vote, the Romanian delegation withdrew indefinitely from the Assembly in protest of the vote.

Reprieve has tried to use the Council of Europe report in its advocacy. First, we convened a
meeting of all relevant human rights organizations in London to talk about the legal issues
around Diego Garcia and what kind of accountability we could demand from the British
government for its role in the operation of the detention center there. Legal theories and political
considerations shot back and forth across the room from activists and international law
professors. The gathering concluded that although circumstantial evidence pointed to British
complicity, there was little hard evidence of involvement, and the legal theories on which to hold
the British accountable would depend heavily on the extent of involvement. This launched the



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search for more concrete information about Diego Garcia, suggesting that this is only the
beginning of the fight for accountability.

Second, coordinating with the Parliamentary Working Group on Extraordinary Renditions
(PWGER)--a group of British members of Parliament concerned about British involvement and
complicity in the U.S. program--Reprieve tried to bring the matter of British involvement,
particularly regarding Diego Garcia, before the House of Commons during an "adjournment
hearing," essentially a committee meeting outside of the normal assembly sessions. During this
meeting, members of the PWGER pushed the representative from the majority Labour party to
condemn the U.S. practice of extraordinary rendition and to renounce British involvement in it.
The Minister stepped around the issue and essentially ridiculed the Working Group's proposals.
It was discouraging to see the British Parliamentary member, like his allies across the Atlantic,
deploy the same kind of attenuated legalistic discourse to avoid accepting responsibility for a
practice that was clearly morally and legally wrong. As I sat in Westminster Hall in British
Parliament listening to these debates, it reinforced the fact that so much of what has happened in
the "war on terrorism"--from the Afghanistan and Iraq invasions to the extraordinary rendition
program--would not have been possible without concerted British efforts.

This parliamentary debate happened the same week as the lowest point of my experience so far.
On June 19 we learned that one of our clients, a Tunisian man (husband and father of eight)
named Abdullah bin Omar, had been secretly returned to Tunisia along with one other Tunisian
detainee named Lotfi Lagha. We knew that Mr. bin Omar would eventually be released because
the U.S. put him on the "cleared list" a few weeks before, which meant they had determined he
neither constituted a continuing security threat to the U.S. nor offered any intelligence useful to
the "war on terrorism." We had implored the U.S. government, however, to not return him to
Tunisia, because he would face a 23-year sentence that he had been convicted of in absentia in
the early 1990s for membership in a non-violent Islamist political party. Though he was likely
sent back on a Saturday, we were not informed of his release until Tuesday, thus preventing us
from doing anything to intervene. We have since learned that Abdullah is in fact in a Tunisian
prison, where he is being tortured, has been forced to confess to things he has not done, and has
received threats by Tunisian authorities that they will rape his wife and daughters.

To help Abdullah, my colleagues and I have been working the phones, faxes, and email, reaching
out to anyone who will listen and take up his case. My colleagues contacted members of the
European Parliament, particularly its Human Rights Committee, which convened to discuss the
issue last week. I sent submissions to the Office of the United Nations High Commissioner for
Human Rights, including to the Special Rapporteur for the Prevention of Torture (which helps
monitor the Torture Convention), the Working Group on Arbitrary Detention, the Working
Group on Judicial Independence, and the newly created Special Rapporteur for the Promotion
and Protection of Human Rights While Countering Terrorism. We also got in touch with all of
the countries that have significant diplomatic and economic relations with Tunisia to try to create
diplomatic pressure on the government to ensure for Abdullah's proper treatment and, hopefully,
his release.

In the best-case scenario, a third country would offer to grant Abdullah (or other soon-to-be-
released detainees) asylum in their countries. It seems, however, that few countries will likely do



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much in this situation, since no one is eager to help the United States out of the mess that is
Guantánamo. This is why the most effective interventions will likely be multilateral ones
conducted at the supranational level. In addition to initiating processes at the United Nations, I
have also been preparing a communication to submit on Abdullah's behalf to the African
Commission on Human and Peoples Rights, which monitors the implementation of the African
(Banjul) Charter on Human and Peoples' Rights. We also reached out to the media, trying to
pitch Abdullah's story to Arab media and U.S. media. Several journalists did take an interest,
which led to articles in a few U.S. and North African papers.

We are trying to develop ongoing coverage of the issue of returned detainees because it is the
next stage of the Guantánamo saga. Approximately 80 detainees have been cleared for release,
but if returned to their countries of origin, many will find themselves in Mr. bin Omar's exact
situation, either facing old sentences (often handed down in absentia) or fresh convictions under
new anti-terrorism laws passed since 2001. These returns ostensibly mean that these innocent
men's existences as detainees--and all of the mistreatment and hopelessness that has gone along
with it--will continue. Apparently, the U.S. government does not consider it sufficient to have
ruined these men's lives without cause, but also feels that it is perfectly acceptable to ensure that
they will never be free of the stigma of their orange jumpsuits.

Back in the U.S., there had been some interesting legal developments related to detainees as I
was preparing to leave the country. Just a few days before I left, military commissions at
Guantánamo Bay ruled that they did not have jurisdiction to hear cases against Saleem Hamdan
and Omar Khadr. In both cases, the military commission judges noted that the Military
Commissions Act which established them, provided for jurisdiction over "unlawful enemy
combatants," whereas Hamdan and Khadr had both been held all this time as "enemy
combatants." Accordingly, the cases were dismissed for lack of jurisdiction.

The dismissals were a heartening development. Not only did it suggest that military judges
themselves were unwilling to participate in anything less than a proper judicial process, but it
also exposed the ludicrousness of the entire legal apparatus supporting Guantánamo. Under the
laws of war, there are two types of enemy combatants--lawful and unlawful. Lawful ones are
determined to be POWs and gain certain privileges from that status, while unlawful ones are
determined by military courts to be unlawful, and are denied the POW status and privileges. The
pervasive legalism that has pervaded the Bush administration's "war on terrorism,"--the
redefinition of the very meaning of torture (to be understood now as pain equivalent to that
experienced with organ failure or death), attempts to claim that Guantánamo is not technically a
U.S. territory, and other such obfuscations--has come back to haunt it.

These decisions preceded what has thus far been the best news of my experience, though it is
only a minor victory in the grand scheme. In a nearly unprecedented decision, the United States
Supreme Court decided to reconsider its previous rejection of two sets of detainees' petitions for
review of the D.C. Court of Appeals' decisions that upheld the constitutionality of the Military
Commissions Act of 2006. Such a reversal of a prior decision not to grant certiorari (review of a
lower court's decision) has likely not occurred since a 1968 case, and so it was a very dramatic
moment when the Court changed its mind on the last day of its 2007 term.




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But the struggle is far from over. The Court still needs to be persuaded that the administration's
system is unconstitutional, which will take a lot of work. But more pressingly, on the same day
of the decision, new Al-Qaeda-linked bomb attacks and attempts hit London and Scotland. Two
car bombs were found outside a club in London and two men drove a fiery jeep into Terminal 1
of the John Lennon Airport in Glasgow. Since then, Britain has been on high security alert,
which has put a certain sense of energy in the air not unlike what I experienced while living in
Jerusalem during the Second Intifada in 2001.

But more than the sense of urgency and the renewed fear in which people must carry out their
lives, the attacks are upsetting to me because they reinforce the arguments of those who wish to
keep Guantánamo (and the whole network of secret prisons) running indefinitely, until the "war
on terrorism" is over. The attacks thus represent the continuing misunderstandings (or
indifference) that lie at the center of this global conflict. U.S. and British and other societies
continue to fail to understand what impact their abusive practices have on Muslims all over the
world, and the perpetrators of the attacks, Al Qaeda or their copycats, seem to have no sense or
regard for the effect that their acts of senseless violence have on the struggles of the detainees to
one day be free.




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