End 17 Years Of Injustice

Alarm as Proposals Emerge to Send ISIS Prisoners to Guantánamo, and the U.K. Strips “ISIS Bride” of Her Citizenship

The prison at Guantánamo Bay and one of the guard towers.

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By Andy Worthington, February 23, 2019

17 years after the U.S. tore up international and domestic laws and treaties regarding the treatment of prisoners, in the "war on terror" that George W. Bush declared in the wake of the terrorist attacks of September 11, 2001, and which led to the establishment of CIA "black sites" and the prison at Guantánamo Bay, those decisions continue to cast a baleful shadow on notions of domestic and international justice.

A case in point concerns foreign nationals seized during the horrendous war in Syria over the last eight years.

From the start of his presidency, Donald Trump made it clear that he wanted to send new prisoners to Guantánamo, and those involved in Daesh (more commonly referred to in the West as ISIS or the Islamic State) were particularly singled out.

Fortunately, wiser heads prevailed, and the proposals came to nothing. Some of those advising Trump pointed out that it seemed probable that a new Congressional authorization would be required to send prisoners to Guantánamo who were not explicitly involved with al-Qaeda, the Taliban, or the 9/11 attacks, and, in any case, others recognized that Guantánamo was no place to send anyone if there was any intention of delivering anything resembling justice.

Set up to be beyond the reach of the U.S. courts, Guantánamo was a place where the Bush administration undertook torture and other forms of abuse in a failed effort to secure actionable intelligence, and has ended up warehousing men that it doesn’t fundamentally know how to deal with. In the meantime, its few efforts at pursuing justice at the prison have made it something of an international laughing stock. The military commissions, set up by Dick Cheney, discredited by the Supreme Court, and ill-advisedly revived twice by Congress — once under Bush, and once, to his shame, under Barack Obama — have proven incapable of delivering anything resembling justice at Guantánamo, while the federal courts, in contrast, have a long and uninterrupted record of successfully prosecuting those accused of terrorism.

However, since Donald Trump announced his intention to withdraw U.S. troops from Syria, there has also been discussion — again — of sending some of the foreign fighters held there to Guantánamo. A senior State Department official told ABC News, "Our preferred first option would certainly be repatriation and prosecution, keeping [foreign fighters] locked up in countries of origin when possible, where possible. But when countries aren't willing to take responsibility for their own citizens that went and fought for the Islamic State, if they are high-value detainees, and members of ISIS leadership, then we're going to make certain that they remain off the battlefield. One way of doing that might include sending them to Gitmo."

While four Senators — including the notoriously aggressive Sen. Tom Cotton (R-Ark) — have written to Donald Trump urging him to send ISIS fighters to Guantánamo, many other voices are opposed. "The United States can't be the world's jailer," Raha Wala, the director of National Security Advocacy at Human Rights First, said. He added that some countries have said that "they don't want to cooperate with the U.S. on counter-terrorism issues if the result is sending a detainee to Guantánamo," as ABC News described it. Wala also spelled out how Guantánamo "has not only been a moral abomination but also a legal and policy disaster for the United States."

To add to the alarm that mention of bringing new prisoners to Guantánamo brings, the chatter about the ISIS prisoners also raises fundamental questions about nationality and national responsibilities.

The U.K. and citizenship-stripping in the case of Shamima Begum

In Britain this week, there has been widespread concern after the home secretary, Sajid Javid, stated his intention to strip Shamima Begum of her citizenship. Begum, a British citizen, was just 15 when she traveled to Syria after being indoctrinated to join ISIS. Now aged 19, she is living in a refugee camp in Syria, has just given birth to a child, and has asked to be brought back to the U.K.

Javid’s decision is so alarming not just because of Begum’s age, and therefore her lack of responsibility for her actions (adults are supposed to be held responsible for the decisions taken by juveniles — those under 18), but also because, by stripping her of her citizenship, he is making her stateless, a situation that is, to be blunt, completely unacceptable.

In case anyone needs reminding — not least Sajid Javid — it is illegal under international law to remove someone’s citizenship if doing so makes them stateless. As the barrister David Anderson, who previously served as a reviewer of the UK's anti-terror legislation, pointed out to Al-Jazeera, "Those born as British citizens who are not dual nationals cannot be stripped of their citizenship in any circumstances" — and many, many other public figures, including lawyers, academics, politicians and journalists, have made their opposition to Javid’s decision clear.

Shiraz Maher, the director of the International Centre for Study of Radicalization at King's College London, told the BBC’s Newsnight, "I think it's a very dangerous decision, it does create this perception that there is a two-tier system and a system that's frankly racist. And this is the perception that occurring in Muslim communities across the country. It's a dangerous situation the Home Secretary has created."

However, Javid evidently believes that a section of the 1981 British Nationality Act, and further legislation passed in 2002, allows him to remove citizenship if he can show that the person in question has behaved "in a manner which is seriously prejudicial to the vital interests of the U.K.," and that he has "reasonable grounds for believing that the person is able, under the law of a country or territory outside the U.K., to become a national of such a country or territory."

In Begum’s case, that country is Bangladesh, but, although her parents are of Bangladeshi heritage, she has never even visited Bangladesh, and the Bangladeshi government has announced that it has no obligation — or intention — to accept her as a citizen. In addition, of course, there is something deeply disturbing about politicians claiming the right to extra-judicially strip someone of their citizenship because he or she regards their behaviour as "seriously prejudicial to the vital interests of the U.K.," without having to explain why he or she thinks that a girl who is not actually accused of horrific crimes herself, only of sympathizing with those regarded as terrorists, constitutes such a threat that she must be stripped of her citizenship.

Five years ago, I was disturbed to discover that Theresa May, when she was home secretary, was involved in enthusiastically stripping dual nationals of their British citizenship — and, in two cases, when they were in Syria, telling the U.S. where they were so that they could be killed in drone strikes. The Bureau of Investigative Journalism established that 41 individuals had been stripped of their British nationality since legislation was passed enabling it in 2002, and that 37 of these cases had taken place under Theresa May.

That was thoroughly shocking, but in general, whilst it is appalling for the British government to suggest that they can strip dual nationals of their citizenship whenever it suits them — and without any judicial process being involved — mention of stripping British citizens born in Britain of their nationality — in other words, making them stateless — has been both rarer and more contentious.

However, last year, when the last two members of a British quartet of alleged Daesh killers, dubbed "the Beatles," were captured and stripped of their British citizenship, no one seemed to notice that, although one of the men, El Shafee Elsheikh, had moved to the U.K. from Sudan with his family in the 1990s, the other man, Alexanda Kotey, although generally described as having "a Ghanaian and Cypriot background," was born in Britain, and was therefore made stateless when his citizenship was stripped.

What will happen to the ISIS fighters held in Syria?

In addition, Britain is not the only country playing dangerous games with the law when it comes to ISIS fighters, their wives and their children. As the so-called caliphate has collapsed, with ISIS fighters "making their last stand in an area smaller than one sq km in the eastern desert near the border with Iraq," in the Guardian’s words, it has become clear that, as the paper described it, "About 500 battle-hardened fighters are thought to be defending the remains of the caliphate and most are highly motivated foreign nationals who are ideologically committed to fighting until the end. Most local Isis recruits from Syria and Iraq are believed to have slipped back into the general population."

As the Guardian also explained, "At least 1,000 foreign nationals, including at least 14 British citizens, suspected of being Isis members are held in prisons and camps in north Syria, having been captured by the Kurdish-led Syrian Democratic Forces (SDF) over the last three years." Furthermore, "About 1,500 with links to the group are being held at displacement camps, often in appalling conditions. They are from more than 40 countries and some have been held for at least two years." When Donald Trump tweeted about the prisoners last weekend, he stated that "over 800" foreign troops were still held, a number now reduced, as 150 Iraqi-born ISIS fighters were repatriated last week. As ABC News put it, U.S. officials believe that "less than 10 percent of the current detainees" can be considered as "high-value" prisoners.

The situation on the ground is evidently complicated, because the Kurdish Syrian Democratic Forces (SDF), who are holding ISIS suspects, are "a major western ally but a non-state actor," in the Guardian’s words. As a result, foreign governments are severely constrained in providing any kind of consular assistance.

Nevertheless, as the Guardian explained, "Some governments, including the U.S. and Russia, have repatriated men, women and children for trial or rehabilitation programmes" (with the U.S. to date bringing back 16 fighters, 13 of whom have been prosecuted in federal court), while the French government has said it will assess its nationals on a case by case basis. Three weeks ago, the French justice minister, Nicole Belloubet, told French radio that, as the Guardian described it, "the government would rather keep track of jihadists than risk them evading justice." As she said, "We’ve made a choice, which is that we prefer control, which means a return to France."

Last weekend, the U.S. "called on European nations and other countries to repatriate and prosecute their citizens who travelled to Syria to join" ISIS, but, just days after, Secretary of State Mike Pompeo signified that the U.S. had jumped on the citizenship-stripping bandwagon, when he stated that Hoda Muthana, a U.S. citizen who had traveled from Alabama to join ISIS, and now regretted her decision and wanted to return home with her 18-month old son, was not actually a U.S. citizen. As Al-Jazeera explained, "A lawyer for Muthana's family, Hassan Shibly, said the administration's position was based on a 'complicated' interpretation of the law involving her father." Shibly told the Associated Press, "They're claiming her dad was a diplomat when she was born, which, in fact, he wasn’t." As Al-Jazeera explained, "Under the Immigration and Nationality Act, a person born in the U.S. to a foreign diplomatic officer is not subject to U.S. law and is not automatically considered a U.S. citizen at birth."

However, this one example from the U.S., while significant in and of itself, doesn’t match the U.K.’s blanket hardline approach, which, in particular, smacks of the horrible kind of racism that has been so prevalent in Tory political discourse since the EU referendum in 2016, and that, as I explained when Theresa May became the party’s leader, is an intrinsic part of her thoroughly unpleasant personality.

Nevertheless, whichever way the situation develops over the coming weeks and months, it’s clear that everyone everywhere who cares about the rule of law and the inviolability of citizenship needs to keep a close eye on this evolving story.