U.N. Condemns Arbitrary Detention of Guantánamo Prisoner and Torture Victim Abd Al-Rahim Al-Nashiri, and Calls for His Release
Abd Al-Rahim Al-Nashiri, photographed before his capture, and in a courtroom sketch from 2011 by Janet Hamlin.
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By Andy Worthington, June 15, 2023
In a truly devastating opinion, the U.N. Working Group on Arbitrary Detention has condemned the government of the United States for the arbitrary detention, over the last 20 and a half years, of Abd Al-Rahim Al-Nashiri, a 58-year old Saudi national who was imprisoned and tortured in CIA "black sites" for nearly four years, and who has been held, since September 2006, in the prison at Guantánamo Bay, where he was brought with 13 other men described as "high-value detainees." He is one of nine men facing charges in the prisoner’s largely dysfunctional military commission trial system, but, as the Working Group explained, although "pretrial hearings" in his case "began on 17 January 2012," they "remain ongoing and no trial date has been set," and, in a conclusion that must have unsettled the Biden administration, they called for his release.
Also implicated in his arbitrary detention are seven other countries — Afghanistan, Lithuania, Morocco, Poland, Romania and Thailand, where he was held in CIA "black sites," and the United Arab Emirates, where he was first seized, without an arrest warrant, in October 2002, and interrogated for a month by Emirati intelligence operatives before being handed over to the CIA. The bulk of the Working Group’s condemnation of Al-Nashiri’s treatment is, however, focused on the U.S.
In recent months, the U.N., which has always condemned the existence of Guantánamo and the human rights violations committed there, as well as in the CIA’s global network of "black sites," has stepped up its criticism, issuing, via a number of U.N. experts, a resounding condemnation of life-threatening medical neglect in the case of Abd Al-Hadi Al-Iraqi, another "high-value detainee" (which I discussed here), and, also via the Working Group on Arbitrary Detention, an opinion in the case of Abu Zubaydah — the "high-value detainee" for whom the CIA’s post-9/11 torture program was developed, in the mistaken belief that the was a high-ranking member of Al-Qaeda — which was so hard-hitting that I described it as "the single most devastating condemnation by an international body that has ever been issued with regard to the U.S.’s detention policies in the 'war on terror,' both in CIA 'black sites' and at Guantánamo."
In Al-Nashiri’s case, the opinion may be an even more powerful condemnation of the U.S. government’s behavior over the last 21 years, because, whereas Abu Zubaydah has never been charged with a crime, and it doesn’t take a legal education to conclude that his imprisonment is arbitrary (i.e. without any justifiable legal basis), in Al-Nashiri’s case, by charging him, the U.S. government has — as with the five men charged in connection with the 9/11 attacks — persistently sought to shield itself from any criticism of how these men are treated by holding up their trials as proof that, at some fundamental level, their ongoing imprisonment is somehow justified.
The Al-Nashiri opinion cuts through that shield, however, in particular through an assessment that Al-Nashiri’s "rights to fair trial and due process have been repeatedly violated in Guantánamo Bay," and the evidence about his treatment suggesting that he "suffered the most egregious violations of human rights, of such gravity as to give the deprivation of liberty an arbitrary character."
The violations that he suffered in the "black sites" — all while being held incommunicado — include waterboarding, rectal feeding, sleep deprivation, prolonged nudity (often while being exposed to cold temperatures and cold water), the prolonged use of stress positions, various forms of physical violence, and being subjected to a mock execution, and the Working Group’s conclusions are based on variety of reliable sources.
These include various unclassified CIA reports, and an International Committee of the Red Cross (ICRC) report from 2007 based on interviews with the "high-value detainees" after their arrival at Guantánamo in September 2006, which was leaked in 2009, and which found that "the totality of the circumstances" in which all 14 "high-value detainees" were held "effectively amounted to an arbitrary deprivation of liberty and enforced disappearance, in contravention of international law."
The Working Group’s conclusions were also based on the Senate Intelligence Committee’s report about the CIA torture program, whose executive summary was publicly released in December 2014, and, perhaps most devastatingly, on a declaration by Dr. Sondra Crosby, "an expert in internal medicine and the treatment of victims of torture," who, in March 2012, was appointed by the U.S. Defense Department to conduct an evaluation of Mr. Al-Nashiri, and who, after meeting with him for approximately 30 hours, submitted her declaration in October 2015.
"One of the most severely traumatized individuals I have ever seen" — and the lack of appropriate clinical care
In her declaration, Dr. Crosby concluded that "Mr. Al-Nashiri suffers from complex posttraumatic stress disorder as a result of extreme physical, psychological, and sexual torture inflicted upon him by the United States." She added, "In my opinion, the CIA also succeeded in inducing 'learned helplessness' in Mr. Al-Nashiri. The result is that Mr. Al-Nashiri is most likely irreversibly damaged by torture that was unusually cruel and designed to break him. Indeed, in my many years of experience treating torture victims from around the world, Mr. Al-Nashiri presents as one of the most severely traumatized individuals I have ever seen."
As if this were not damning enough, she also proceeded to explain how, "Making matters worse, there is no present effort to treat the damage, and there appear to be efforts to block others from giving him appropriate clinical care."
This assessment of deliberately blocked efforts to provide Al-Nashiri with appropriate clinical care is crucial to the Working Group’s findings, portraying a system of such entrenched brutality that, although Al-Nashiri has, for 13 of the last 15 years, been in pre-trial hearings regarding his alleged role in the bombing of the USS Cole in 2000, he continues, for the most part, to be deprived of any even vaguely adequate mental health care because the detention system at Guantánamo fundamentally treats those held in the prison — and particularly those previously held in CIA "black sites" — as human beings without any fundamental rights, despite there being absolutely no basis for that in international humanitarian law.
Although the U.S. government has created an illusion of compliance with recognized international norms regarding detention and trials — a team of defense attorneys for those charged, for example, and even occasional family calls — the underlying attitude towards these men is at it was in the "black sites": that they should, as much as possible, remain incommunicado and dehumanized.
When it came to responses from the relevant governments, it was noticeable that, although Morocco, Poland and Romania responded, Afghanistan, Thailand, the United Arab Emirates and the United States did not, and Lithuania’s response was received after the decline for submissions. Evasion, however, was typical even of the countries that did respond. Morocco denied that Al-Nashiri had even been held there, while Romania "contested the applicant’s version of the facts on all accounts," even though the European Court of Human Rights found, in a number of judgments between 2014 and 2018, that Poland, Romania and Lithuania had all hosted CIA "black sites," and had violated the European Convention on Human Rights when it came to Al-Nashiri’s treatment, and ordered all three countries to pay him damages.
The Working Group concludes that al-Nashiri must be released
In their concluding remarks, the Working Group noted that they were "concerned about the physical and mental well-being of Mr. al-Nashiri," especially in light of Dr. Crosby’s comments regarding the lack of clinical care.
As the Working Group explained, "The submissions that Mr. al-Nashiri was tortured stand unrefuted, and the European Court of Human Rights has confirmed them. The Working Group notes that medical care at Guantánamo Bay has been and remains grossly deficient [and] is obliged to remind the Government of the United States that all persons deprived of their liberty must be treated with humanity and with respect for the inherent dignity of the human person, in accordance with article 10 of the Covenant" — the Covenant being the International Covenant on Civil and Political Rights, adopted in December 1966.
As they also explained, "Denial of medical assistance constitutes a violation of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), in particular rules 1, 24, 25, 27 and 30." They also noted that they had referred Al-Nashiri’s case to the Special Rapporteur on the right to health.
The Working Group also noted that, while their opinion specifically addressed al-Nashiri’s case, "the conclusions reached here also apply to other detainees in similar situations at Guantánamo Bay," adding, as they did in their opinion about Abu Zubaydah, that, "Under certain circumstances, widespread or systematic imprisonment or other severe deprivation of liberty, in violation of international law, may constitute crimes against humanity."
In conclusion, "taking into account all the circumstances of the case," the Working Group found that "the appropriate remedy would be [for the U.S. government] to release Mr. al-Nashiri immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law."
A devastating opinion, then, as I’m sure you will appreciate, and a sign, perhaps, of more to come in the cases of eight other "high-value detainees" subjected to egregious torture in CIA "black sites" and charged in the military commissions — the five men charged in connection with the 9/11 attacks, and three others in connection with terrorist attacks in south east Asia.
I’m sure I’m not alone in thinking that the U.S. government won’t release al-Nashiri, but as I explained in my recent article, The Broken Old Men of Guantánamo, there needs to be a renewed vigor, on the part of the Biden administration, to conclude the plea deals that have begun in the cases of the 9/11 co-defendants (which involves taking the death penalty off the table), with plea deals also extended to Al-Nashiri and the other three men.
To conclude the long and almost unbearably sordid story of Guantánamo, the U.S. government will — while presumably continuing to hold these men until the end of their lives — need to do so in a facility that is capable of meeting their complex mental and physical needs, which are largely, if not entirely to do with their treatment not only in the "black sites," but also, for the last 16 years, at Guantánamo itself.
