More Evidence of Failed US Detainee Policy

Celebrations by the families, friends and supporters of the three British men who returned from Guantánamo on Wednesday – Omar Deghayes, Jamil El-Banna and Abdulnour Sameur – were abruptly cut short when the Spanish government immediately requested the extradition of El-Banna and Deghayes for alleged ties with terrorists, even though the supposed evidence in Deghayes’ case was comprehensively demolished nearly three years ago, and, in El-Banna’s case, is strenuously denied by his lawyers. In March 2005, image recognition experts, commissioned by the BBC’s Newsnight, concluded that the figure in a grainy video of a Chechen training camp, which was supposed to be Deghayes, was in fact a militant named Abu Walid, who had later been killed.

As the men landed on British soil, there was no reason to suspect that their return would involve anything more than a cursory police investigation. El-Banna had been cleared for release from Guantánamo by a military review board in May this year – as close to an admission of innocence as the notoriously unapologetic US administration ever gets – and the US authorities had also agreed to the return of Deghayes and Sameur, as requested by the British government in August, while refusing to release another British resident, Binyam Mohamed.

Lawyer Clive Stafford Smith, who represented the men and met with them at Guantánamo during their long imprisonment without charge or trial, pointed out that they had all agreed to unspecified voluntary security arrangements required by the UK authorities, and, on arrival, as Sean O’Neill described it in the Times, El-Banna “was detained under port and border controls – a signal that Britain does not regard him as posing any serious security threat.” Deghayes and Sameur, meanwhile, were arrested under the Terrorism Act 2000 and were held for questioning at Paddington Green police station in west London, a move that served only to indicate that Scotland Yard’s Counter-Terrorist commanders wanted to be certain that they posed no threat to Britain before releasing them. O’Neill added, “Most of the previous returnees from Camp Delta have been through the same process and none have been involved in any trouble since they came back.”

Even more significant were comments made by William Nye, director of counter-terrorism and intelligence at the Home Office, following discussions with the US government about the return of the British residents, which had first taken place in June 2006, and which were revealed in the Guardian last October. At the time, the British government, which, until that point, had refused to press for the release of any of the British residents, was reluctantly discussing the return of just one of the British residents, Bisher al-Rawi (who was released in March this year). Both al-Rawi and El-Banna had been kidnapped by CIA agents in the Gambia, where they had travelled to set up a mobile peanut-processing plant, after an inexplicable tip-off from MI5, and had been transferred to Guantánamo via a secret CIA-run prison. Scandalously, the discussions about the repatriation of al-Rawi – but not of El-Banna – were based solely on the fact that al-Rawi’s lawyers had embarrassed the government by pointing out that he had actually been working for MI5, keeping tabs on the radical cleric Abu Qatada.

Describing what had happened during the meeting with Americans, William Nye explained that the Americans had requested that the British take back all the residents – not just al-Rawi – but that the British representatives had balked at the conditions that the US government had attempted to impose, which included an insistence that they “cannot legally leave the UK, engage with known extremists or engage in, support, promote, plan or advocate extremist or violent activity,” and that the British government would put surveillance in place “to know immediately of any attempt to engage in any such activity.” Nye declared, “I am not satisfied it would be proportionate to impose … the kind of obligations which might be necessary to satisfy the US administration,” explaining that the measures demanded by the Americans would have to be enforced by MI5 and would divert vital resources away from countering more dangerous terrorist suspects. “The use of such resources … could not be justified and would damage the protection of the UK’s national security,” he wrote, adding, in the most crucial passage, that the detainees “do not pose a sufficient threat to justify the devotion of the high level of resources” the US would require.

It was genuinely shocking, therefore, when the Spanish government lodged its extradition request on the men’s return. As Sean O’Neill described it, the Spanish alleged that El-Banna had links with a Madrid al-Qaeda cell, which was purportedly responsible for recruiting young men and sending them for jihad training, and which was also “said to have had ties to the German-based al-Qaeda unit that plotted the September 11 atrocities.” He added, “What has motivated Spain to act now is something of a mystery. America has had Mr. El-Banna in custody for five years and interrogated him repeatedly in brutal conditions. It laid no charges against him and deemed him fit to be freed. Spain made no attempt to extradite him from or question him while he was in US custody.” He concluded that the Spanish government’s action “seems inhumane and its evidence rather thin.”

Clive Stafford Smith added more detail, explaining that he had tried to encourage a Spanish extradition request as a means of getting the men out of Guantánamo, but that the authorities in Madrid had never showed any interest. “It is very dismaying,” he told the BBC’s Newsnight. “For quite a long time, we tried to get the Spanish to demand their release because we thought it was an elegant way to get them out of Guantánamo. The Spanish weren’t interested … The idea now that they want to use this evidence we have proved to be false to take them for further detention is very worrying.”

Under the terms of the European Arrest Warrant, an EU-wide agreement introduced in 2004 and intended to simplify extradition procedures between member states by removing potential political interference and ensuring “faster and simpler surrender procedures,” the British government had no choice but to comply with the Spanish request, even though William Nye had made it clear that none of the men were regarded as a “sufficient threat” to warrant 24/7 surveillance, and, as Sean O’Neill pointed out, the British “had no intention of putting [El-Banna] on trial as a terrorist when he returned here.”

On the morning of December 20, while the Metropolitan Police were preparing to release Abdulnour Sameur without charge, Jamil El-Banna and Omar Deghayes were duly transported to Westminster Magistrates’ Court – just a few hundred yards from Parliament – where Melanie Cumberland, representing the Spanish government, resurrected the claims against the men, first formulated by the Spanish judge Baltasar Garzón in December 2003, when he also requested the extradition of two other Guantánamo detainees, a Moroccan and a Spaniard – that El-Banna had been a member of a Madrid-based organization known as the Islamic Alliance, and that he was an associate of Imad Yarkas, who is serving 12 years in a Spanish prison for terrorism offences. Cumberland relayed the Spanish authorities’ claim that both El-Banna and Deghayes belonged to a cell that provided recruits for military training in Afghanistan and Indonesia, which was also alleged to have raised funds for terrorism and to have spread al-Qaeda propaganda.

In response, Ed Fitzgerald QC, who represented both men, cited the discredited video as “the centrepiece” of the Spanish allegations, and accused the prosecutor of making wild accusations “for which there was no evidence,” adding that there was, instead, solid evidence that neither the US nor UK authorities considered the men to pose a significant danger.

Granting bail to both men – set at £50,000 (much of which was paid by actress and human rights campaigner Vanessa Redgrave) – the judge, Timothy Workman, dismissed prosecution claims that they would flee abroad or engage in terrorist acts, and declared, in El-Banna’s case, “The prosecution concerns about offences being committed are outweighed by the detailed review being carried out in the US.” He did, however, insist on tough bail conditions, including the imposition of a curfew, the use of electronic tagging and a prohibition on travelling abroad.

Outside the court, El-Banna, who appeared to have aged considerably during the five years of his imprisonment, made only a brief statement. “Thank you very much everybody, my solicitor, the British people, the British government for your help,” he said, adding, “I am tired, I want to go home and see my children,” before leaving in a car to be reunited with his wife and his five children. He has never seen his youngest child, who was born after his capture. His MP, Sarah Teather, who has campaigned assiduously for his release, said that “immense cruelty” had been inflicted on the family, who were only told at 8.30pm on Wednesday that he had been arrested and would not be coming home. “The children could not understand why he was not back and Sabah [his wife] was devastated,” she added. After meeting Mrs. El-Banna briefly outside the courtroom on Thursday morning, I can confirm that this was indeed the case.

Several hours later, Omar Deghayes also emerged from the court to be reunited with his family. Speaking later from his home in Brighton, he said, “I am very, very happy to be home. I am very grateful to everybody who has helped me. I would have been happier if everybody in Guantánamo were released and that ugly, bad place was closed down if not demolished.” He added, “I need some rest but I will be very happy to speak to everybody in the media to help other people to be released.”

Missing from the extradition discussions – in the media, if not amongst the lawyers – was the demonstrable weakness of the intelligence relating to the two other Guantánamo detainees whose extradition was requested by Judge Garzón in December 2003. Garzón’s motives were not in doubt. In an interview for Mother Jones in 2004, he explained to Tim Golden why he was opposed to the Americans’ approach to the “War on Terror,” and why he favoured “a multinational, legal approach over what he describe[d] as a ‘militaristic’ strategy of intelligence gathering, extrajudicial arrests, and military detention.” “What frightens me is when people start going beyond the limits of the law,” he said. “Taking the right to a defense away from those who are detained at Guantánamo. Establishing a license to kill terrorists. In this country, we know what it means to use this heavy hand. We know that when the fight against terrorism moves outside the law, it becomes very dangerous.”

As an example of Garzón’s legal approach to the post-9/11 world, Tim Golden observed that an indictment of Osama bin Laden that was issued by Garzón in autumn 2003, which was the first such document to charge bin Laden in connection with the 9/11 attack, “echoed his insistence that even the most terrible criminals on earth should be dealt with in courts of law.” Garzón also defended his extradition request for the four Guantánamo detainees – Jamil El-Banna, Omar Deghayes, Moroccan-born Lahcen Ikassrien, and Hamed Abderrahman Ahmed, from the Spanish enclave of Ceuta, in north Africa – “arguing pointedly that the only standing charges against them were those he had filed in Spain.”

Despite Garzón’s enthusiasm for the law, however, when Lahcen Ikassrien and Hamed Ahmed were extradited from Guantánamo to Spain, at his request, the cases against them collapsed.

Ahmed, transferred in February 2004, had the dubious distinction of being the first Guantánamo detainee to be handed over to a foreign country for prosecution. Released on bail in July 2004, he was later put on trial and was sentenced to six years in prison in October 2005, although Garzón’s claims did not even figure in his trial. Instead, he was convicted based on allegations by the prosecution that he had travelled to Afghanistan in August 2001 to fight for the Taliban government, and had received religious and military training. However, in a momentous decision by the Spanish Supreme Court in July 2006, his sentence was dismissed. The Supreme Court ordered his immediate release, and said that the High Court had not considered him “innocent until proven guilty,” and had used evidence collected at Guantánamo that “should be declared totally void and, as such, non-existent,” adding that the High Court was “entirely remiss in its role of providing evidence.”

Ikassrien, transferred in July 2005, was released on his return, but was ordered to report daily to the police, and was prohibited from leaving the country without permission. When his trial came around, he, like Hamed Ahmed, had his case dismissed by the Supreme Court, which concluded, in October 2006, that there was no evidence to back up charges he was a member of al-Qaeda, stating, “It has not been proved that the accused Lahcen Ikassrien was part of a terrorist organization of Islamic fundamentalist nature, and more specifically, the al-Qaeda network created by [Osama] bin Laden.” Significantly, the Supreme Court’s judgment followed another momentous decision, four months before, to quash the conviction of Imad Yarkas, the lynchpin of the whole case against Hamed Ahmed, Lahcen Ikassrien, Jamil El-Banna and Omar Deghayes, for conspiracy to commit murder in the 9/11 attacks, although his conviction for belonging to a terrorist organization was upheld.

With only these examples of failed prosecutions to draw upon, the position taken by the Spanish government is, frankly, incomprehensible. As Jamil El-Banna and Omar Deghayes attempt to rebuild their shattered lives in the bosom of their families, it is to be hoped that their lawyers can draw compelling arguments from these cases – and from other examples of Spanish intelligence failures – before the extradition hearings begin on January 9, 2008.