By Andy Worthington, October 3, 2013
On Tuesday, lawyers for Shaker Aamer, the last British resident in Guantánamo, filed a motion with the District Court in Washington D.C., seeking to persuade Judge Rosemary Collyer to compel the U.S. government to "permit his examination by a medical expert of his choice," retained by his lawyers.
Mr. Aamer's legal team, who include Ramzi Kassem of City University of New York School of Law (who made this new motion available to me), Clive Stafford Smith, the director of Reprieve, and David Remes, note that, although their client was cleared for release from Guantánamo "years ago by the U.S. government’s own interagency process," he is still held, and, they maintain, "An examination by an independent medical expert is needed for the Court to exercise its jurisdiction meaningfully by accurately assessing the reliability and voluntariness of any statements Mr. Aamer reportedly gave American (and any other) interrogators."
Mr. Kassem and the other lawyers also state that an independent medical examination will aid the Court and the lawyers "in determining if Mr. Aamer can fully participate in his habeas proceedings." As in the cases of the majority of the prisoners still held, Mr. Aamer has not had a judge rule on the merits of his habeas corpus petition, even though the Supreme Court recognized over five years ago, in Boumediene v. Bush, in June 2008, that the prisoners at Guantánamo have constitutionally guaranteed habeas corpus rights.
The lawyers also note, "Additionally, as his past and continued mistreatment threatens irreparable harm, Mr. Aamer is entitled to the relief sought herein in the form of an injunction."
In support of Mr. Aamer's claim, his lawyers note that, in the eleven years of his imprisonment, "he has been subjected to numerous abuses by his captors," including "physical and psychological coercion associated with interrogations, prolonged solitary confinement, deplorable sanitary conditions, refusal to treat Mr. Aamer’s various medical conditions properly, and punishment and retaliation in response to Mr. Aamer’s current peaceful hunger strike."
Drawing on a statement made by Mr. Aamer, as well as their own submissions, the lawyers run through the long history of torture and abuse that he has suffered since his capture nearly 12 years ago.
Torture and abuse in Afghanistan
At Bagram, where Mr. Aamer was first held, he "was subjected to physical and psychological torture … Interrogators repeatedly slammed his head into the wall with such force that his head bounced off the wall -- a practice known as 'walling.'" It was also noted:
During interrogations, U.S. agents threatened Mr. Aamer with death if he did not answer their questions ... U.S. military personnel doused him with cold water in the middle of winter, while they kept him in a cage in the cold, from which Mr. Aamer thought he would die from hypothermia … They also “hog-tied” him, by tying his wrists behind his back and then tying a rope from there to his ankles … Military personnel tied another rope around his neck, so that if he struggled, he would strangle himself ... They also used “strappado” on Mr. Aamer, a form of torture used during the Spanish Inquisition, where they hung him by his arms with his feet barely off the ground, resulting in the dislocation of his shoulders and causing him excruciating pain …
While at Bagram, U.S. military personnel subjected Mr. Aamer to sleep deprivation for several days, as the guards were under orders to keep the prisoners awake by making loud noises … Interrogators threatened Mr. Aamer with rendition to countries such as Egypt, Israel and Jordan where he would undergo further torture.
After Bagram, Mr. Aamer was transferred to Kandahar, where "he faced similar torture to what he survived at Bagram, including sleep deprivation and physical abuse." In addition, "during his time at Kandahar, not even the Red Cross had access to him … This total lack of access to the outside world led Mr. Aamer to think he had been 'disappeared,' never to be heard from again."
Torture and abuse in Guantánamo
In Guantánamo, where Mr. Aamer arrived on February 14, 2002, the same day that his youngest child was born, "he was subjected to regular beatings, sleep deprivation, temperature extremes, denied access to fresh air and recreation, and kept for several years in solitary confinement." This treatment, the lawyers note, "has had significant psychological effects on him."
The lawyers also state, "Mr. Aamer was held incommunicado for the first four years of his confinement … He was not allowed any direct contact, such as a phone call, with his family for eight years." In a declaration accompanying the motion, Clive Stafford Smith notes, "He has been held in solitary confinement at Guantánamo since 2004; although he occasionally saw breaks in this isolation, those breaks have been short and always end with his return to isolation."
In another declaration accompanying the motion, Ramzi Kassem notes how, as a protest about "his imprisonment and continued mistreatment," Mr. Aamer "refuses to leave the recreation area" on a daily basis after the short period when he is allowed out of his cell, "and is forcibly taken back to his cell by a team of guards." These are no ordinary guards, but the Immediate Reaction Force (IRF), six guards in riot gear, who routinely handle prisoners in a violent manner. As Mr. Aamer has noted, “I am very worried about my health and my life in this place, I feel so vulnerable and anytime they can do anything to me, no one knows.”
Mr. Aamer also "suffers from many physical ailments such as kidney pain, arthritis, edema, asthma, tinnitus, constant constipation and stomach pain," but he states that "he has routinely been denied adequate medical care while at Guantánamo," and "alleges that this denial of adequate medical care is part of his punishment."
The hunger strike
The lawyers also note that Mr. Aamer has been taking part in the prison-wide hunger strike that began in February "to peacefully protest the fact and conditions of his continued, indefinite imprisonment without charge." In retaliation, he says, the guards "have subjected him to additional sleep deprivation and physical abuse." As Clive Stafford Smith notes:
During recent “IRFings” in response to Mr. Aamer’s hunger strike, one of the guards, who weighs approximately 300 pounds, has been kneeing Mr. Aamer in the back and putting all of his weight on top of Mr. Aamer as he holds him to the ground … During one of these recent incidents, this particular guard continued to put all of his weight on Mr. Aamer’s back until Mr. Aamer heard his back crack … Mr. Aamer is very worried about being paralyzed from one of these brutal encounters, as two other prisoners were paralyzed after attacks by guards … He has reported: “My back and my neck are getting worse day by day. I don’t want the end of this torture here to be paralyzed. I want to carry my kids when I get home; I don’t want my kids to have to wash me. I don’t want to be the third one paralyzed in this place.”
As a result of his involvement in the hunger strike, Mr. Aamer has lost 60 pounds in weight, dropping from 208 pounds to approximately 148 pounds. Ramzi Kassem notes, "When I met with him on June 28, 2013, he was literally skin on bone: I could see his ribs protrude sharply beneath his skin."
Crucially, the lawyers note, "Mr. Aamer has told counsel that the conditions of his confinement have interfered with his ability to think about his case, to help his attorneys by preparing for meetings or responding to legal mail with necessary information for his case." It is also noted that military personnel "punish Mr. Aamer for having phone calls with his counsel." Mr. Aamer has reported, “Each phone call [from a lawyer] is a curse,” and the lawyers note, "After a phone call with one of his lawyers, the guards treat him harshly and use any information that he has shared with his lawyers" against him.
In calling for an independent medical evaluation, the lawyers expand on their initial argument by stating:
An examination of Mr. Aamer by an independent medical expert is necessary and appropriate to aid this Court’s habeas jurisdiction in two independently sufficient ways. First, the opinion of an expert with no ties to the government would shed necessary light on Mr. Aamer’s consistent accounts that he was interrogated while being physically and mentally abused by the government. This, in turn, would set the stage for a meaningful examination of the veracity and reliability of any reported statements offered in evidence by the government and attributed to Mr. Aamer. Second, an examination by an independent medical expert would allow the Court and Mr. Aamer’s counsel to form an accurate idea of his capacity to continue participating in his proceedings. Only with this information can the Court properly assess whether or not to proceed at all and whether or not to take appropriate measures if Mr. Aamer is in danger of no longer being able to participate in his proceedings; such an assessment would enable the Court to preserve the status quo and its jurisdiction over his case.
The lawyers also draw on previous Guantánamo habeas cases to point out that "the Court must be able to investigate whether a statement introduced in evidence against a prisoner is the 'unreliable product of coercion,'” and specifically mention cases in which judges recognized statements as being unreliable -- including the case of Fouad al-Rabiah, which I described in an article in 2009 entitled, "A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions," and the case of Uthman Abdul Rahim Mohammed Uthman, which I described in a 2010 article entitled, "Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture."
The lawyers also draw on two other cases -- which "dealt with Guantánamo detainees who were participating in hunger strikes," in which the courts "compelled access to medical experts to evaluate the petitioners." In both cases, the lawyers note, "the petitioners’ physical and mental conditions were adversely affecting their ability to participate in their cases." The lawyers add that, like these petitioners, "Mr. Aamer’s treatment while confined at Guantánamo has adversely affected his ability to participate in his proceedings."
Finally, as the lawyers argue, "Respondents’ mistreatment of Mr. Aamer not only threatens the Court’s jurisdiction and calls into question the reliability of any statements that Mr. Aamer reportedly made, but it also threatens his very health and well-being. The threat of irreparable injury entitles Mr. Aamer to relief under Federal Rule of Civil Procedure 65." As they also state, "An expert could gather evidence that would allow Mr. Aamer’s counsel to reliably monitor his health and ability to participate in his case on an ongoing basis."
Drawing on another Guantánamo case to establish that an independent medical evaluation 'fall[s] into a category of relief over which the court[s] [have] jurisdiction,'" the lawyers also note that, although, in another case, the court "held that medical reports were sufficient … reports alone are inadequate in this case because of the serious doubts that both Mr. Aamer and his counsel have as to the reliability of reports compiled by Guantánamo medical staff members who have themselves contributed to Mr. Aamer’s mistreatment."
As the lawyers explain:
Mr. Aamer has several reasons for not trusting the doctors on staff at Guantánamo. He is often given only redacted reports explaining the doctors’ treatment and opinions on his health. When he is given treatment by those doctors, he often sees that treatment manipulated or taken away after a short time as punishment … He has witnessed the medical staff’s complicity in his abuse and heard them dismiss the damage done him by Guantánamo guards … Whatever reports they produce do not accurately and fully reflect the abuse by Guantánamo personnel that Mr. Aamer reports and its severe effect on his well-being … Since his recent hunger strike began, the medical staff has continued to be, at best, ineffective rubber stamps to his abuse, and at worst, active participants.
These seem to us to be sound arguments for allowing Shaker Aamer to have access to independent medical evaluation. It remains to be seen if Judge Collyer agrees.