“A catastrophe on every level” – Clive Stafford Smith on Guantánamo, transparency and the rule of law

by Naomi Colvin

This is a very-slightly-edited version of a webchat that took place on the Guardian’s website this afternoon (Tuesday). Clive Stafford Smith is the Legal Director of Reprieve and has represented many Guantánamo detainees, among them Shaker Aamer, Jamil al Banna, Sami Al Hajj, Sami Al Laithi, Abdul Salam Gaithan Mureef Al Shehry, Moazzam Begg, Omar Deghayes, Jamal Kiyemba, Benyam Mohammed and Hisham Sliti.

Unlike most commentators, Clive Stafford Smith has had access to the full files for a number of detainees and his perspective is therefore very important. His answers cover some pretty eye-opening statistics on the very slight number of cases that have even the faintest case of making it to trial and an espousal of the need for more transparency, notwithstanding certain reservations about the way the UK press has covered the release of the Guantánamo files. I’ve edited several of the questions below in the interests of brevity.

Will the information in the files be sufficient to produce a long-term change in political attitudes to human rights and situations such as Guantanamo?

There’s a lot to this question. I need to be careful up front and say that all I am talking about is the unclassified information, and I cannot mention all the classified stuff that I get to see. But the first issue is that these documents represent only the best case the US Military could come up with against people. Each document is based on literally hundreds of conflicting and often highly unreliable statements. Thus, what you are seeing is well less than 1% of the total.

Then the redactions mean that it is not possible to tell the source of the information. I know from unclassified information (Shaker himself as well as elsewhere), for example, that the bad allegations against Shaker Aamer saying he was big buddies with Bin Laden come exclusively from one of the most notorious informants in Guantánamo who has been totally discredited. Thus, it was rather ironic that the Guardian ran a story on the allegations against Shaker, and another about the unreliability of ISN 252 (the informant) but did not link the two, and thus did not point out that the allegation against Shaker is total drivel (the legal term!). And so on and so forth.

It’s inevitable, even if regrettable, that a number of innocent persons will be caught up in the net with the guilty. They should be compensated, but the errors are not of themselves grounds for closing down the facility. Rather it is a case for better methods for weeding out the innocent at an earlier stage and for a more critical approach to evidence and the way it is gathered.

I can’t agree with you here. You only need evidence, of course, if you’re going to have trials. The problem is that they don’t have trials – of any meaningful nature and for any number of prisoners (4 military cases, including 2 guilty pleas, in 9 years). But it is not a “number of innocent people” – the wikileaks show about 150 prisoners known to be innocent by the US, none of whom got compensation. But the numbers paint a far worse tale – of 779 prisoners, 6 died, 601 have been released after being determined to be “no threat to the US or its coalition partners” and of no intelligence value, 172 remain or whom 82 are cleared for release leaving just 90 who the US thinks should be held (just over 10% of the original total). Of these, the evidence is highly dubious for many, and only 4 have been brought to any kind of trial. It has been a catastrophe on every level – for the prisoners and for the US as well.

What percentage of the information in the documents is true? It appears as though they captors had to justify the illegality of their actions?

You’re right, as I mentioned these 759 (of 779) documents are the best case they think they can make out. It is impossible to put a figure on what proportion of the material is true or false, but the numbers I put up in response to Oldcon tell some of the story. Take the issue of the “London Cell of Al Qaeda” – of the six people meant to be a part of it, only two had ever lived in London, one (my client Mohammed el Gharani – ISN 269) would have been 11 years old at the time and had never left Saudi, and the other three were two Saudis and one Kuwaiti who had nothing to do with London. All this came from one of the notorious informants in Guantánamo and is total nonsense. Yet the Telegraph ran a story as if it was true, and the US held Mohammed for 7 years before a judge threw the case out against him. All that time he should have been in school.

Any chance of Jack Straw being prosecuted for sending UK nationals to be tortured? I know there’s no law against lying to the press, but what about lying to Parliament?

I’m not going to pick on Jack Straw, but there is plenty of information that has come out, and will over the next few weeks, about British knowledge and involvement in some of these issues.

The attorneys in the US who have security clearance are prohibited from seeing the classified documents. Is this the same for UK attorneys and do you also have to have security clearance to represent those at Gitmo?

No we can see the classified documents, but only in the US and we obviously cannot talk about what we see. But in general terms I can say from years’ of experience that these Wikileaks documents are created by a military functionary based on him parsing hundreds of other statements and cherry picking the “best” bits. One source of endless frustration to me is the fact that the US only lets out the “proof” that someone is a bad guy, without letting us speak in public about all the evidence that proves him innocent. This is precisely why we need a far more transparent system. A real justice system.

Looking at the leaked information, what percentage of inmates would you say are in for a legitimate reason (i.e. they were committing terrorist activities or took up arms against the US) and what percentage of inmates are there for non-legitimate reasons (i.e. kept purely for information gathering)?

I have put some of the figures up above. One salient issue is that if you read President Musarraf’s (rather dull) book In the Line of Fire, he boasts that more than half of the prisoners in GTMO were not captured on the battlefield at all, but sold by the Pakistanis.

Let’s take one sample that is easily discussed from the Telegraph today. There is irresponsible journalism where one glosses over inconvenient facts; and there is very irresponsible journalism, where one ignores the facts altogether. Today’s Telegraph falls into the latter category. “At least 35 Guantánamo Bay inmates fought against the West after being indoctrinated in Britain, leaked files disclose”: is the headine today. They say that 9 of these are British nationals and 8 are British residents. They do not identify the other 18.

Turning first to the 17 who are known, there is one fact that is patently clear – none, not one, has been shown to have fought in Afghanistan against the US or its allies. All have been freed. None has “gone back to extremism” as if they were ever there. Indeed, I am not aware of anyone having a parking ticket.

The most outrageous defamation involves Jamal al Harith who, far from fighting the US, had been held by the Taliban as a suspected spy for the UK, and was tortured by them. He was then taken to GTMO and badly mistreated to learn … intelligence on how the Taliban treat their prisoners.

Now the Telegraph does not name the other 18, but I have a pretty good suspicion who they are, and again their article is mindless nonsense.

Does operating an extra-judicial concentration camp not amount to crimes against humanity?

I suspect it does, but you have to have a court where you can prosecute. The US has not signed onto the ICC (International Criminal Court) and so we have no venue. While we are on the subject, it is important to note the broader issue: speaking as an American (which I am, a dual national) I fail to understand how we can proselytize for democracy and the rule of law while refusing to respect it – refusing to join the ICC (or, indeed, sign up to any human rights convention that can be enforced against us, including the Convention Against Torture), insisting on a veto at the UN, and so forth. We have to do better, and practice what we preach.

What in your opinion were the systemic faults at Guantanamo that led to such a debacle in terms of the evidence for holding the detainees being so faulty?

Hey Joyce, I am afraid that is a long topic. I have just finished a book on the subject that I shall inflict on the world soon (albeit about the justice system generally rather than just GTMO), and in a word it is that we have precisely the wrong people doing many jobs. Those who are in law enforcement or intelligence are not wickedly conspiring to make errors, but they tend to be people who believe the worst about anyone, and they therefore buy all the nonsense that informants feed them – which means we make very foolish decisions. It is a long discussion as I say….

Can you honestly see Obama being able to close down Guantanamo – given that even those who we might believe have done bad things appear to have been tortured, making any trial near impossible.

No, I think you’re right, he won’t close it. I hate to be too critical, as I voted for him and I feel that I would screw up being president much worse than he has, but he missed his opportunity early on and allowed the Republicans to make GTMO into a political football. Sadly, the US is out of touch with the rest of the world, and a majority still think that keeping GTMO open is a good thing for the world (and for the US), which is madness.

Clive, do you know why only some of the full files relating to British ex-detainees have been disclosed by the Guardian/Wikileaks? Related to this, do you know whether the Guardian liaised with any of the detainees before disclosing this very sensitive personal information.

Actually none of the “full files” have been released at all. The most you get is about 10-15 pages of their summary as I describe above. The full file of a case I am working on in the US at the moment runs to perhaps 10,000 pages. So this is a tiny portion of what is really there.

The Guardian has tried to be attuned to the sensitive issues – there is no point naming informants, for example, as it only makes their lives harder, and many people informed on others (in ways that were patently false) for very human if unfortunate reasons (if you or I were tortured, we’d do it I suspect). But I will say that some stories have been very unwise, such as the front page article today about one of our clients being an MI6 collaborator. That kind of thing can get someone killed very quickly, more often by an oppressive North African government (viz Gaddafi et alia) but sometimes by the real extremists who do exist out there.

This is an example of the failure of democracy, Obama ordered the prison to be closed yet somehow it never was…the people who ruled the country under Bush still rule the country under Obama. This will not change in a world where profits of war are too high to avoid.

Actually, I think this is an example of Democracy (with a capital D) at work, and why one does not really want a pure Democracy (which some Greeks considered a potentially tyranny) but rather a Republic, where there a checks and balances. The majority of the US wants to keep GTMO because dubious characters like Sarah Palin have scared them. Those who read the Telegraph today might have been similarly scared. The purpose of a judiciary is to protect the weak individual against the fearmongering that sometimes inspires the majority.

Is there any other judicial system that can hear these cases? It’s really an outrage that these innocent men cannot be represented in a fair, unbiased, forum rather than the proposed Military commissions. Is there a possibility after the release of these documents that the illegality of the process of arrest, the torture, the facility, etc., be brought before a world court?

We are gradually getting the cases before US federal courts on habeas. The figures are pretty shocking. Rumsfeld said all the prisoners were the “worst of the worst.” By the time we got into court, the number had already been reduced by about 500, so the remainder should be the “worst of the worst of the worst”. Yet on the latest figures, 34 of 53 (that is a whopping 64 percent) have been found wholly innocent by the federal courts – and that is with a low standard of proof (preponderance rather than beyond a reasonable doubt), using secret evidence the prisoner cannot see, etc. It is quite an indictment. One would be better off tossing a coin than depending on US military intelligence.

Do you think that the leaked files will make authorities less willing to keep accurate written records that relate to their human rights abuses? I know that this Q & A is about the leaked files. But Guantanamo is just part of the picture. It seems incredibly likely that the US will continue to detain people around the world without a fair trial if they think that they pose a serious threat to US national security. How can we stop prisoners disappearing into floating warship prisons and other hidden places, that are harder to detect?

I should say that I have to follow the rules when representing people and I do scrupulously, as I want to keep on doing it. But personally I think there is vastly too much secrecy in the world. We are using “national security” and “privacy” to cover up some terrible government actions. Even with the expenses scandal, if the Govt had its way the stuff about duck ponds would have been redacted as being “private”. So while they might cover up more if they knew it was coming out, they would also be vastly more afraid of misbehaving. Well worth the trade off, I believe, were I in charge.

In addition to those held in Guantanamo, what is your estimate for the numbers held elsewhere around the world on similar grounds either directly by the US or on behalf of the US?

Good question. We need constantly to be anticipating the next human rights abuses, and I can tell you it is now Drones. While there are proxy detention issues (no time for that now), the US has decided holding people in GTMO is too much of a problem, so they are now firing drones to kill them. No Pakistan taken prisoner to Bagram in two years, that I know of, yet now 2000+ killed in videogames conducted from California. Very worrying and something Reprieve is now getting deep into.

Who in you opinion headed up the faulty systems that led to both the poor treatment of detainees and inadequate evidential requirements for their detention?

The same people who thought torture would get useful intel fast – the armchair soldiers in Washington. I interviewed some of them for Ch4 one time, and was shocked by their naïve approach. Unfortunately, many politicians have had little experience of the real world out there.

I am reluctantly reaching the conclusion that if Guantanamo (and Bagram, etc.) are to be shut down, the pressure is going to have to come from the international community. I wonder what you think of that assessment and I wonder what we could hope for from other governments and, indeed, citizens in other nations to finally press the American government to close Guantanamo. At present, it certainly appears that Obama and the Congress are prepared to keep this gulag open indefinitely.

You’re right. We thought from the start that we had to pitch to an audience that would listen, and that was less the US than Europe and elsewhere. But ultimately we still have to get the US to close the place, and it has become harder since we got all the Europeans (except Shaker Aamer, who is a British resident) home. Unfortunately nearly 50% of the remaining prisoners are Yemeni, and nobody in the US cares about Yemen. So write to me about what you’re going to do about it. Email is: cstaffordsmith@gmail.com.

Much was made at the time of American efforts to find countries to “sponsor” released inmates. How successful (or not) were those efforts?

We have had a project working on that for several years. It’s tough as the US works against itself on this. While Obama has tried to find places to take people, the Republicans have gone around trying to prove that released prisoners have caused trouble (to try to show they were not so wrong in the first place). I am proud of the fact that of our Reprieve clients nobody has caused the least squeak of trouble, and that Obama just released a report saying that only 3/68 (4%) Guantanamo prisoners he released have done anything bad since release. That is the truth, and far far better than any US prison on the mainland; but it is hard to sell it to countries that have little to gain by taking prisoners, and a lot to lose if the tabloids pretend everyone is a bad guy. These leaks will make our job harder as now all the bad stuff is out there about each guy, while none of the evidence proving their innocence has been released.

Is knowing that a great deal of wrong has gone on [through info leaks] in Guantanamo make any difference to US policy in the short term, considering the hold of right wing politicians in Washington?
 Aren’t the practices in GTMO simply the emulation of what goes in other prisons all over the USA to some extent?

Overall, despite the problems the leaks have caused us in certain cases, a small part of the truth coming out is probably helpful. But we need a full inquiry in the US that can look at all the evidence because … you can’t learn from history if you don’t know what that history is. On the second point, GTMO is worse than any death row I have been to (and there are many) as the prisoners are so hopeless, held without trial, without hope of release, with a new congressional ruling that they cannot be released without specific congressional approval (the kind of law we condemned 400 years ago).

Our justice system is one based on the presumption of innocence, but reading about the detainees in Guantanamo and also some in the UK those suspected of terrorism are being detained on the presumption of guilt. Because of this even those released without trial or compensation for their mistreatment may still be thought of as guilty. If the US is unable to proceed in within a fair and transparent justice system will this not give credence to the Wikileaks files and the dogma of terrorism groups.

I would not mind even a presumption of guilt so much if only I had a fair place to hold a trial. But it is an irrebuttable presumption of guilt.

What will happen with the Aafia Siddiqui case? it to me is one of the more unpalatable examples (not like the rest are wholesome)

Aafia Siddique another in a long line of bullets that the US has shot into its own foot. By not allowing her a fair trial, and giving her 80 years in prison for not killing someone when (private US contractor in Pakistan) Raymond Davis got to use Sharia law to avoid any punishment for killing two people, the US has set back the cause of justice and peace in Pakistan still more.

Do you see a movement in the next 12 months or so by the Obama administration to at least close part of the centre at Guantanamo to try and minimise the political fallout he will inevitably receive during the 2012 Presidential cycle?

The problem is that he dithered and allowed this to become the divisive issue the Republicans wanted. Now there are many reasons he cannot do it. Congress passed laws saying he could have no money to close it, and that he has to get agreement each time a prisoner is released, etc.

Do you think there are any measures that can and should be implemented to deal with the defective performance of the ‘armchair soldiers’, if so what are they?

They need educating, and education is possible even with politicians! Sometimes, though, I am afraid we have to use corporal punishment on them, which involves smacking them about in the courts, as we had to in Binyam Mohamed’s case.

How many Guantanamo Bays are there, i.e, are there any other centres like this that are operating outside of national and international jurisdictions?

172 prisoners held beyond the rule of law in GTMO; 1500 in Bagram. So that is one that has received too little attention, and includes prisoners who were captured by the British as well. But beyond that the US is now using proxy detention much more, where we have someone banged up by the locals (as with our client Sharif Mobley in Yemen) and we rely on them to abuse him. Of course that is not new – Binyam Mohamed could tell you all about his experiences in Pakistan and then Morocco – but it is the preferred method these days.

Do you believe the US can be considered a terrorist state? I ask as some recent actions (i.e. Fallujah, the helicopter attack on reuters journalists and children, and the Drone bombings you mentioned earlier), seem to smack of terrorism and are certainly illegal in any conventional sense. As is Guantanamo for that matter.

The word terrorist is, in my opinion, not a helpful term – whether applied to the US or anyone else. Just as with torture – to say that we condemn torture tends to mean that we do not complain about cruel, inhuman and degrading treatment where it does not fit the definition. It would be better to turn the conversation around, and talk about what we should be doing – positives rather than negatives.

Do you feel that there is evidence to suggest that intelligence was ‘created’ by using torture at Gitmo, in order to build the WMD narrative for the Iraq Invasion?

Of course it has. Ibn Shaikh al Libi is the best example, where he was rendered to Egypt and tortured into saying that Al Q was in league with Saddam. But lots has been made of this in Gitmo too.

If we’re looking at nothing less than crimes against humanity (as you suggest above), including both Guantanamo and proxy detention centres, shouldn’t the UN be doing something other than nothing? Yes, the US is not signed up to the ICC and it has a veto in the Security Council, but what about the Commission for Human Rights and the like? Should right-minded countries give up on the UN?

Look, every institution has its flaws, but those who oppose the EU need to remember that it is better to jaw jaw than war war, and we’ve not fought the Europeans with bloodshed for years now, so it’s been a huge success. And the UN is hugely important. We just have to get the US to see that they will need it in a few years when trying to complain about the Chinese.

I was just wondering what you thought on the lack of habeas corpus in Guantanamo bay following the case of Hamdi v Rumsfeld. I know the decision mainly had an effect on US citizens; but in the obiter of the case the it is espoused that an ‘alleged enemy combatant’ should have have access to habeas corpus (relying on the geneva convention).
Also, do you think that the case sets a dangerous precedent in relation to discrimination between US and non US citizens?

Big question but the US needs to get the notion of human rights as a legal, rather than merely philosophical notion. Constitutional rights may only be for Americans etc, but human rights are obviously for humans. But the US has not signed up to ANY HR convention that is meaningfully enforceable in a court.