Mustafa al-Hawsawi

On 1 March 2003, Pakistani agents captured Mustafa al-Hawsawi in Rawalpindi, Pakistan, and transferred him into the custody of the United States of America. Mr. al-Hawsawi was tortured and detained in secret Central Intelligence Agency (CIA) black sites in the CIA’s Rendition, Detention, and Interrogation (RDI) Programme until September 2006. In September 2006, Mr. al-Hawsawi was transferred to Guantánamo Bay, Cuba and U.S. officials finally acknowledged his detention.

Mr. al-Hawsawi is characterised as a High Value Detainee (HVD). A February 2004 confidential report of the International Committee of the Red Cross (ICRC) found that detainees labelled by the U.S. as “HVDs” were at particular risk of torture and other ill-treatment. Further investigations, for example, by the: European Parliament (LIBE Report 6 October 2011 and LIBE Report 2 August 2012); Council of Europe (PACE Report 7 June 2006 and PACE Report 7 June 2007); the CIA’s own Inspector General (CIA Background Paper on Combined Techniques, 30 December 2004 (released 24 August 2009) and Special Review, 7 May 2004); and United Nations Special Rapporteurs (UN Joint Study on Secret Detention, 19 February 2010) and (UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, 1 March 2013), have concluded that the CIA-operated rendition, secret detention and interrogation programme involved serious human rights violations, including torture and cruel, inhuman or degrading treatment or punishment (“other ill-treatment”), and removal to countries where detainees faced risk of further torture and other ill-treatment.

The secrecy of the CIA programme makes it extraordinarily difficult to gain access to evidence related to Mr. al-Hawsawi's time in secret detention and the classification regime makes it impossible for Mr. al-Hawsawi to disclose it himself. However, the executive summary of the Senate Select Committee on Intelligence’s Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program (“SSCI Summary”), released in December 2014, shed light on aspects of the torture and ill-treatment suffered by Mr. al-Hawsawi during his detention. The SSCI Summary confirms that Mr. al-Hawsawi was subjected to enhanced interrogation techniques, including sleep deprivation. Mr. al-Hawsawi was also subjected to water-dousing without the approval of CIA Headquarters. A CIA interrogator wrote that “al-Hawsawi might have been waterboarded or subjected to treatment that ‘could be indistinguishable from the waterboard.’” The SSCI summary also refers to severe injuries sustained by Mr. al-Hawsawi as a result of rectal examinations administered with “excessive force”. Following these violations, Mr. al-Hawsawi was diagnosed with chronic haemorrhoids, an anal fissure, and symptomatic rectal prolapse, conditions he continues to suffer from today.   “Due to a lack of adequate medical care at CIA detention sites and the unwillingness of host governments to make hospital facilities available” Mr. al-Hawsawi’s access to medical care for a serious medical issue was delayed on at least one other occasion during his secret detention.

Mr. al-Hawsawi faces capital charges before a U.S. Military Commission in Guantánamo Bay. The charges relate to his alleged involvement as a financier of the September 11, 2001 attacks in the United States. However, the SSCI Summary identifies Mr. Al-Hawsawi as one of a number of individuals who were detained under the CIA's program "despite doubts and questions surrounding [his] knowledge of terrorist threats and the location of senior al-Qa'ida leadership". In fact, after his first interrogation, the Chief of Interrogations wrote to CIA Headquarters saying that al-Hawsawi “does not appear to the [sic] be a person that is a financial mastermind.”

The UN Working Group on Arbitrary Detention has held that Mr. al-Hawsawi’s ongoing detention in Guantánamo Bay is arbitrary and in contravention of articles 9 and 10 of the Universal Declaration of Human Rights and 9 and 14 of the International Covenant on Civil and Political Rights. (See also, Background briefing paper from the Al-Hawsawi legal team on Arbitrary Detention) In July 2015 the Inter-American Commission on Human Rights adopted a resolution on precautionary measures regarding Mr. al-Hawsawi requesting the United States of America, inter alia, to adopt the necessary measures to protect the life and personal integrity of Mr. al-Hawsawi and to adopt the necessary measures to ensure access to medical care and treatment. (See also, Background briefing paper from the Al-Hawsawi legal team on Torture Rehabilitation)

Due to the clandestine nature of the CIA’s RDI programme, the strict classification regime applied to information regarding the programme, and the highly restrictive protective order imposed on High Value Detainees and their attorneys, it is impossible to obtain complete information regarding Mr. al-Hawsawi’s exact location throughout his time in secret detention. However, the global scale of the RDI Programme has become clear through various investigations. For example, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has identified that CIA “black sites” were located on the territory of Lithuania, Morocco, Poland, Romania and Thailand and that the officials of at least 49 other states allowed their airspace or airports to be used for rendition flights (Ben Emmerson QC (1 March 2013)).  In two cases decided in July 2014, concerning detainees Al Nashiri and Abu Zubaydah, the European Court of Human Rights found that such a facility had been established in Poland, and that Polish authorities were complicit in its establishment and operation.

 

Complicity in Europe

Prior to the release of the Senate Select Committee on Intelligence’s Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program (“SSCI Summary”), detailed analysis of publicly available evidence on the programme, including information gathered by European and international bodies, as well as flight data gathered by the NGOs Reprieve and Access Info Europe, suggested that Mr. al-Hawsawi was secretly held in a CIA black site in Lithuania for an unknown period between March 2004 and September 2006.  It also suggested that he was either held in, or at least transferred through, Poland in 2003 as part of his extraordinary rendition from Afghanistan to another CIA black site.  REDRESS has filed complaints with authorities in both Lithuania and Poland seeking the opening of investigations into these allegations.

On 11 February 2015, the European Parliament adopted a resolution on the US Senate report on the use of torture by the CIA.  The European Parliament reiterated “its calls on Member States to investigate the allegations that there were secret prisons on their territory where people were held under the CIA programme, and to prosecute those involved in these operations, taking into account all the new evidence that has come to light.”

 

Lithuania

In September 2013, REDRESS and the Human Rights Monitoring Institute (HRMI) submitted a complaint calling for an investigation into allegations that Mr. al-Hawsawi was illegally transferred to, and secretly detained and tortured in, Lithuania as part of the CIA-led programme. REDRESS and HRMI asked the Lithuanian Prosecutor General to conduct an effective investigation into the suspected criminal offenses committed in Lithuania against Mr. al-Hawsawi. The organisations requested the Lithuanian Prosecutor General to secure evidence, seek clarification from Mr. al-Hawsawi (via the U.S.), seek urgent preservation and disclosure of all relevant evidence, and identify all officials involved in the alleged violations with a view to ensuring that they are prosecuted if, and as, appropriate.

On 2 October 2013 REDRESS and HRMI were informed of the Prosecutor's decision not to open an investigation on the basis of the complaint. On 8 October 2013 REDRESS and HRMI filed an appeal against this decision. At first instance, the appeal was dismissed, but a further appeal was upheld by the Vilnius Regional Court on 28 January 2014.

On 10 October 2013 the European Parliament adopted a resolution on the alleged transportation and illegal detention of prisoners in European countries by the CIA, which urged Lithuanian authorities to open a criminal investigation into the case.

On 20 February 2014 the Prosecutor General's office announced that it had opened an investigation into indications of a criminal activity, provided for in Article 292 Para 3 of the Criminal Code of the Republic of Lithuania, (illegal transportation of persons across state border).

In April 2014, REDRESS, HRMI, and a number of other NGOs submitted a joint Shadow Report entitled ‘Investigating Lithuania’s complicity in the USA’s CIA Rendition, Detention and Interrogation Programme’ to the UN Committee against Torture, in advance of the Committee’s examination of Lithuania.

In December 2014 the SSCI Summary was released. Although it does not name Lithuania directly (all country names are redacted), it suggested that Mr. al-Hawsawi was held in detention site VIOLET, which corresponds closely to public information known about the Lithuanian black site.

During 2014 and 2015 REDRESS and HRMI made a number of requests for information on the investigation regarding Mr. al-Hawsawi. In 2015 a previously closed investigation regarding the CIA programme was re-opened and was combined with the investigation regarding Mr. al-Hawsawi. On 26 August 2015 REDRESS, through local attorney Ingrida Botyriene, filed a request with the Lithuanian Prosecutor to grant Mr. al-Hawsawi victim status so that he can participate in the ongoing joint-investigation. Prosecutor Rojute sent a letter refusing this request in September 2015. Following this initial refusal of the request by letter we litigated the issue at several stages in order to oblige the Prosecutor to carry out her decision according to the requirements of the Lithuanian Code of Criminal Procedure. A formal rejection of the victim status request was received at the end of 2015. In 2016 we have appealed this rejection to the Higher Prosecutor and  District Court; both of whom upheld the denial of victim status. In June 2016 REDRESS appealed the decision of the District Court to the Regional Court in Vilnius. In the same month the Regional Court rejected this appeal.

 

Poland

In November 2013 Polish lawyer Dr. Bogumil Zygmont filed an application on REDRESS' behalf to the Appellate Prosecutor’s Office in Kraków seeking victim status for Mr. al-Hawsawi in the ongoing investigation into allegations of CIA rendition and secret detention in the country. Like the Lithuanian complaint, the Polish complaint relies on an analysis of publicly available evidence including flight data and suspected movement of other detainees of a similar profile, which points to a strong likelihood that Mr. al-Hawsawi was secretly held in, and/or transferred through, Poland.

On 28 March 2014 the Prosecutor's Office rejected the application for victim status. The reasons for the decision were notified to REDRESS on 18 April 2014, but under Polish criminal procedure they cannot be publicly disclosed. On 25 April 2014, REDRESS appealed the decision to the District Court of Szczytno. In considering whether to consent to the appeal, the Prosecutor's Office called REDRESS to provide further information at an interview in Kraków on 12 June 2014. On December 17, 2014 the Prosecutor reiterated her refusal to initiate an investigation. In making her decision the Prosecutor's Office has separated REDRESS' application from the ongoing investigation and opened a new case file.

A number of submissions and motions were made in the case throughout 2014 and 2015. On 14 September 2015 REDRESS and Dr. Zygmont participated in a court hearing in the District Court of Szczytno. This Court had to determine whether an investigation should be opened regarding Mr. al-Hawsawi. On 28 September 2015, the Court rejected REDRESS' appeal. 

 

United Nations Special Procedures

On 19 February 2016, REDRESS sent a letter to several UN Special Rapporteurs to request urgent action in respect of the medical situation of Mustafa al-Hawsawi. The request for urgent action highlighted the fact that Mr. al-Hawsawi is suffering from a number of serious medical conditions, including injuries sustained as a result of the treatment inflicted on him by the United States Government but is not receiving adequate medical care. The request called on the Special Rapporteurs to urgently inquire into the matter and to request the U.S. Government to ensure that Mr. al-Hawsawi is provided promptly with the necessary medical care.

On 6 May 2016, the Vice-Chair of the Working Group on Arbitrary Detention, the UN Special Rapporteur on the Right to Health, the UN Special Rapporteur on the Independence of judges and lawyers, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, and the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment requested the U.S. Government to provide observations, including to “provide information concerning the measures taken to ensure the physical and psychological integrity of Mr. al-Hawsawi, and in particular what additional remedial measures have been taken to ensure his access to adequate medical care taking his serious medical conditions into account.”

On July 20, 2016, the U.S. Government responded.

 

United States of America

United States Military Commission, Guantánamo Bay - United States of America v. Khaled Shaikh Mohammad et al.

Pre-trial proceedings are ongoing in Mr. al-Hawsawi's case before the Military Commission at Guantánamo Bay.  

Defense counsel for Mr al-Hawsawi and other accused have argued that the inability of the accused to complain about the torture and ill-treatment they have been subjected to undermines the fairness of the trial and is in violation of the United Nations Convention Against Torture and other Cruel Inhuman and Degrading Treatment. The accused are unable to make such complaints due to a restrictive classification regime imposed by a protective order.

On 17 October 2013 REDRESS filed a motion for leave to intervene in the proceedings. REDRESS' submission explains how the classification regime has operated to block complaints to third countries and to hinder its investigations in relation to Mr al-Hawsawi's case. REDRESS’ submission also seeks an order from the United States Military Commission Guantánamo Bay granting it permission to obtain a written authority from Mr al-Hawsawi to pursue legal action outside of the United States. On 27 November the military judge issued an Order denying REDRESS's motion.

On 16 December 2013 the military judge denied the Defense counsel's motion to dismiss, but amended the wording of the Protective Order.

REDRESS was represented pro bono in the case by William J. Aceves.

The full docket and transcripts of hearings are available at http://www.mc.mil/CASES/MilitaryCommissions.aspx

 

United Nations

In March 2016 REDRESS with ICJ and OMCT presented a Submission to the United Nations Committee Against Torture in relation to the United States of America’s One-Year Follow-up Response to the Committee’s Concluding Observations and Recommendations.

In October 2014, REDRESS with partner NGOs submitted a report, ‘Rendered Silent: Ongoing violations arising from the denial of “High Value Detainees’” right to complaint of torture and other ill-treatment’, to the UN Committee Against Torture. 

 


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