Watching the Shadows
Australian citizen David Hicks filed a motion (PDF) to dismiss his conviction in the US Court of Military Commission Review on Aug. 20 after pleading guilty in 2007 for war crimes that took place before 2001 in exchange for his release. Hicks was captured in Afghanistan shortly after Sept. 11, 2011, and brought to the detention facility in Guantánamo Bay the day that it opened. The Center for Constitutional Rights (CCR) and co-counsel Joseph Margulies filed a motion asking the military commission to vacate Hicks' conviction for "material support for terrorism," following the US Court of Appeals for the DC Circuit's 2012 decision in Hamdan v. United States (PDF), which held that material support for terrorism is not a war crime and, thus, is beyond the jurisdiction of military commissions. Hicks' original appeal in November was stayed pending the ruling in Al-Bahlul v. United States (PDF), which similarly held last month that material support is not a war crime and cannot be tried by military commission. Hicks was the first person to be convicted in a military commission. After his release from Guantánamo, Hicks returned to Australia under a one-year gag order that prohibited him from speaking to the media. As part of his plea, he was also prevented from taking legal action against the US and required to withdraw allegations that the US military abused him.
A nurse at the Guantánamo detention center has refused to participate in the force-feeding of hunger-striking inmates, UK human rights group Reprieve reported July 15. Word of the unidentified nurse's refusal came via a phone call from detainee Abu Wael Dhiab to his lawyer at Reprieve and was confirmed to the Miami Herald by a Department of Defense (DoD) spokesperson, who declined to provide further details. According to Reprieve, this is the first instance of a conscientious objecting to the force-feeding of prisoners since a mass hunger strike began last year. As for the nurse, the DoD spokesperson said "the matter is now in the hands of the individual's leadership."
The US Court of Appeals for the District of Columbia Circuit on July 14 overturned two out of three convictions of Ali Hamza Ahmad Suliman al-Bahlul, media secretary of Osama Bin Laden. The court vacated Bahlul's convictions for providing material support for terrorism and solicitation of others to commit war crimes but did not overturn his conviction for conspiracy to commit terrorism, remanding that issue to the Court of Military Commission Review (CMCR). A three-judge panel of the appeals court had ruled last year that the military tribunal that convicted Bahlul of conspiracy in 2007 erred because a Guantánamo prisoner could not be convicted of conspiracy unless his crime took place after 2006. The court said the Military Commissions Act (MCA) of 2006 codified conspiracy as a war crime, but did not apply to crimes committed before the MCA was passed. The en banc court disagreed, ruling "that the 2006 MCA is unambiguous in its intent to authorize retroactive prosecution for the crimes enumerated in the statute—regardless of their pre-existing law-of-war status." Nonetheless, the court vacated the other two convictions, concluding that trying Bahlul by military commission for providing material support was "a plain ex post facto violation," and that "solicitation of others to commit war crimes is plainly not an offense traditionally triable by military commission." The new ruling could result in a reduction of Bahlul's life sentence.
Lawyers for Guantánamo Bay detainees on July 2 filed an emergency application (PDF) in the US District Court for the District of Columbia for a temporary restraining order prohibiting the government from depriving the inmates of the right to pray communally during the month of Ramadan. Lawyers for petitioner Imad Abdullah Hassan have already applied (PDF) for a preliminary injunction, now pending, that alleges that prohibiting the detainees from prayer violates the Religious Freedom Restoration Act (RFRA). The emergency application was filed following the US Supreme Court's recent decision in Burwell v. Hobby Lobby. Hassan argues that the decision in Hobby Lobby, which held that for-profit corporations can deny coverage of contraception costs because of their religious beliefs, overrules the district court's prior decision in Rasul v. Myers. In that case the court held that the Guantánamo Bay detainees are not protected "persons" within the meaning of the RFRA. Thus, the motion argues that "a nonresident alien Guantanamo Bay detainee, who inarguably has constitutional rights in what is de facto sovereign US territory...must also enjoy the protections extended by the RFRA."
The US Court of Appeals for the District of Columbia Circuit on June 10 dismissed (PDF) a lawsuit brought by a former Guantánamo detainee against former Defense Secretary Donald Rumsfeld. According to the original complaint (PDF), the plaintiff, Sami Abdulaziz Allaithi, was an Egyptian professor working in Kabul teaching English. When the US started its bombing campaign, the plaintiff fled to Pakistan, was captured and then transferred to the Guantánamo Bay Detention Camp where he claims he was tortured and prevented from practicing his religion. This treatment continued even though he was classified as a non-enemy combatant by the Department of Defense's Combatant Status Review Tribunal until he was released. In the opinion, written by Judge Janice Rodgers Brown, the court held that, "[t]he now-settled law reveals several flaws and inadequacies of the Appellants' complaint. ... In response, counsel invites us to remand this case to allow them an opportunity to rectify whatever mistakes lie in their pleadings... We cannot."
The US Department of Defense on June 2 approved the war crimes trial of Abd al-Hadi al-Iraqi (BBC profile), a leader of al-Qaeda's armed forces between 2002 and 2004. The former CIA captive has been held at Guantánamo Bay since 2007. The official charge sheet (PDF) alleges, among other things, that al-Hadi was a superior commander for al-Qaeda and that he and his operatives killed multiple US service members and attacked a US military medical helicopter with rocket-propelled grenades and firearms. Prosecutors also allege that al-Hadi funded and oversaw all of al-Qaeda's operations against US and allied forces in Afghanistan and Pakistan from 2002 to 2004, and that he directed his forces to use various unlawful means, such as attacking civilians and detonating car bombs in civilian areas.
The US District Court for the District of Columbia on May 16 ordered (PDF) officials at Guantánamo Bay to temporarily suspend forced feedings of a detainee at the facility. Judge Gladys Kessler's unprecedented ruling also bars officials at the facility from subjecting the detainee to so-called forced cell extractions "for the purposes of" tube-feedings until May 21, the date of the next hearing in the case. The ruling also orders the military to preserve more than 100 videos that show the prisoner being forcibly removed from his cell and force-fed. Syrian national Abu Wa'el Dhiab (advocacy website) has been held at Guantánamo Bay since 2002 after being detained in Pakistan. Dhiab has been cleared for release or transfer out of Guantanamo since 2009, and has been refusing food for over a year. Defense Department spokesman Lt. Col. Todd Breasseale stated in an e-mail that "[w]hile the Department follows the law and only applies enteral feeding in order to preserve life, we will, of course, comply with the judge's order here." (Jurist, May 17; Al Jazeera America, May 16)
Human Rights Watch (HRW) released a report (PDF) on May 12 finding that the use of fully autonomous weapons by militaries or law enforcement would be an affront to basic human rights and should be preemptively banned by international convention. The report, entitled "Shaking the Foundations: The Human Rights Implications of Killer Robots," was jointly authored by HRW and Harvard Law School's International Human Rights Clinic . It questions the ability of autonomous weapons to comply with international humanitarian law. According to the report, robots could not be pre-programmed to handle every circumstance, and thus fully autonomous weapons would be prone to carrying out arbitrary killings when encountering unforeseen situations. Because it is highly unlikely in the foreseeable future that robots could be developed to have human qualities such as judgment and empathy, fully autonomous weapons will not be able to effectively comply with human rights laws.