Last week, as I explained in a recent article, Shaker Aamer, the last British resident in Guantánamo, who was seized in Afghanistan in 2001 after traveling to Afghanistan with his friend Moazzam Begg (and their families) to establish a girls’ school in Kabul, won a significant victory in the British High Court. Lord Justice Jeremy Sullivan ruled that evidence in the possession of the British government, regarding his torture in US custody in Kandahar, Afghanistan, before his transfer to Guantánamo, must be made available to lawyers working on his behalf in the United States, so that they can make representations to the Obama administration’s interagency Task Force, which is currently reviewing the cases of the remaining prisoners in Guantánamo, and is expected to reach a decision sometime next month.
The documents include claims that British agents were, on occasion, present during brutal interrogations that punctuated a regime in which Aamer was “subjected to weeks of torture including sleep deprivation over nine days, cold water torture which led to frostbite, ‘hog tying’ and regular beatings along with threats that he would be sent to be tortured in Egypt, Jordan, or Israel.” As a result of this treatment, Aamer has claimed that he made false confessions, which are being used against him, even though a military review board under the Bush administration cleared him for release from Guantánamo in 2007.
On Wednesday, the legal action charity Reprieve, which represents Aamer in the US, announced that, at a hearing on Thursday, the British security services would argue that they are not required to release the information to Aamer “because he has not been formally charged with a crime.” This prompted Reprieve’s director, Clive Stafford Smith, to exclaim, “Essentially, MI5 are saying they would owe Shaker this evidence if the Americans would bother to charge him. But because Shaker will have no charge and no trial, they say he has no right to any evidence at all and must continue to face indefinite detention with no end in sight. What kind of down-the-rabbit-hole argument is this?”
In the end, however, despite flagging up this argument, and claiming that they would apply for a “Public Interest Immunity” certificate to resist the disclosure of the material on national security grounds, government lawyers capitulated at the last minute. As the proceedings got underway on Thursday, Lord Justice Sullivan and Mr. Justice Lloyd Jones announced that “overnight,” as Paul Calahan explained for the Wandsworth Guardian, the government “had agreed Mr. Aamer’s US lawyers — with the relevant security clearance — could have access to the files.”
As Paul Calahan described it, Aamer’s barrister, Richard Hermer QC, “welcomed the development but told the court the U-turn showed the Government had not ‘done all it could’” to secure his client’s release, as had previously been claimed. “The assertion that they had done everything they possibly could is incorrect,” he said, adding, as Clive Stafford Smith explained last week, with reference to the fact that the documents had been provided to the US government, but not to Aamer’s lawyers, “By sending documents with an express proviso they were not shown to the claimant does not match their claim.”
Lord Justice Sullivan adjourned the case until January to give the Task Force time to hand over material to Aamer’s lawyers, explaining that “the case would be made redundant if the material was handed over,” and adding, pointedly, “It would seem to us that dealing with the matter in this way might concentrate the minds of those involved with both governments … it seems this is in the best interests of all parties.”
As I mentioned in my recent article, I hope that this attempt by Lord Justice Sullivan to “concentrate the minds of those involved with both governments” will lead to Shaker Aamer’s prompt release, as he has suffered for too long in US custody, not because of what he is alleged to have done — involving a selection of spurious allegations of involvement with al-Qaeda which appear to have been derived from his false confessions under torture, and possibly through false allegations made by other prisoners under unknown circumstances — but because he has been an eloquent and outspoken opponent of the manner in which the prisoners have been abused and deprived of their rights.
Speaking after the ruling, Clive Stafford Smith described it as “a step forward,” but, as Paul Calahan put it, was “wary of the concession being used as a delaying tactic — as the US would now have a short time to agree to releasing the documents.” As Stafford Smith explained, with reference to the case of Binyam Mohamed, the British resident released in February, whose story also involves the complicity of the British intelligence services, in an even more harrowing example of the use of torture in the “War on Terror”:
To date, everything has been a delaying tactic. One might well ask why anyone would think it appropriate to cover up evidence of torture under any circumstances. I’m not sanguine about this. The question is how we can make them do it. Last time, with Binyam Mohamed, they reached a deal with the US and the US prosecutors still gave us only seven of the 42 agreed documents, and it took another round of litigation in the UK to force the issue.
Both Stafford Smith and Gareth Peirce, Shaker Aamer’s solicitor in the UK, expressed concerns that the US could transfer their client back to his native country, Saudi Arabia, where, as Paul Calahan explained, “pressure groups like Amnesty International have concerns about human right abuses,” and where, as I explained last week, both the British and American governments would also be secure that he would not be able to speak out freely about his deep knowledge of abuse at Guantánamo. As Gareth Peirce stated after the hearing, “We know they have already tried to make him board a plane to Saudi Arabia once and this could happen again.”
She also said that the case was important in forcing the Government to make public information relating to the activities of the security services. “What we are saying is that the UK has been complicit in appalling crimes, abuses and tortures,” she explained, adding, “There’s a fight to the death in the courts to keep this secrecy.”
As the case of Binyam Mohamed shows (which I reported most recently here), this “fight to the death” has now been ongoing for 14 months, although the judges show no indication of backing down. In Shaker Aamer’s case too, the message from the courts seems to be that questions of national security have nothing to do with topics involving the alleged wrongdoing of the British intelligence services, and that uncovering the truth is extremely important in the interests of justice, whether it leads to embarrassment on the part of the government or to something far darker: proof of complicity in the war crimes initiated, in the name of fighting terrorism, by the government of George W. Bush.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (launched in October 2009), and, if you appreciate my work, feel free to make a donation.