In HIGH COURT OF JUSTICE Case No. 2004/ [insert]
IN THE MATTER OF A CLAIM FOR JUDICIAL REVIEW
BETWEEN
THE QUEEN
(on the application of (1) Feroz Abbasi and (2) Martin Mubanga)
Claimants
- and -
(1) The Secretary of State for Foreign and Commonwealth Affairs
(2) The Secretary of State for the Home Department
Defendants
_____________________
STATEMENT OF GROUNDS
ON BEHALF OF THE CLAIMANTS
_____________________
Introduction
1. This application is brought on behalf of two of the British citizens still detained by United States authorities at the Guantanamo Bay Naval Base in Cuba: Feroz Abbasi and Martin Mubanga, (“the Claimants”).
2. The application seeks judicial review in respect of the response made to requests for assistance to secure the repatriation of the Claimants. The primary relief sought is a declaration that the First Defendant (“the Foreign Secretary”) is under a duty to make a formal and unequivocal request to the Government of the United States of America to repatriate the Claimants.
3. The Second Defendant, (“the Home Secretary”) is joined to these proceedings because of the potential relevance of national security concerns to the stance adopted by the United Kingdom Government to date, and because of statements made by the Home Secretary indicating that he has been involved in the United Kingdom Government’s consideration as to the appropriate approach to take in respect of the Claimants.
4. It is the Claimants’ case that relief should be granted for the following reasons:
(a) The Court has jurisdiction to entertain an application of this kind notwithstanding the fact that the subject matter relates to diplomatic assistance and involves questions of international relations;
(b) That jurisdiction should be exercised in the Claimants’ favour in circumstances where:
They are suffering serious violations of their fundamental human rights abroad and there are no local judicial remedies to secure relief;
Statements made by, amongst others, the President of the United States and the Prime Minister indicate that were the United Kingdom Government to make a formal and unequivocal request for the repatriation of the Claimants that request would probably be acceded to, so bringing those violations to an end;
Statements made by, amongst others, the Prime Minister, the Foreign Secretary, the Home Secretary and the Attorney General, have indicated that the position of the British government is that such a request will be made unless the United Kingdom Government can be satisfied that the Claimants are to be tried by United States authorities in a manner consistent with the fair trial guarantees in international law;
The Government cannot be satisfied that there is any prospect of the Claimants being so tried. The Military Commissions before which the United States authorities propose to try the First Claimant (“Mr Abbasi”) would violate the fair trial guarantees in international law in a series of flagrant respects. Furthermore the United States authorities have not indicated any intention to try the Second Claimant (“Mr Mubanga”) at all;
In the premises the Claimants have a legitimate expectation that the Foreign Secretary will make the request that is the subject of the claim for relief, in the discharge of his legal duty to act compatibly with the policy statements made by the Government;
Notwithstanding points i.-v. no public request for the repatriation of the Claimants has been made by the Government and, so far as the Claimants’ families are aware, no formal and unequivocal request has even been made in private;
There is a real risk that continued failure or delay by the Government in making a request of the kind sought will exacerbate or lead to irreparable psychological or physical harm being suffered by the Claimants;
Any concern that considerations of national security arise in respect of the return of the Claimants to this country cannot be a reason to refuse to make the request or to grant the relief sought;
Each of these propositions is developed in more detail below.
5. This application is made on an urgent basis because of the risk of irreparable harm to the Claimants as a result of the Defendants’ failure to act.
6. An application bundle paginated 1-1255 has been filed with this application1. This bundle contains, inter alia, witness statements in support of the application from the Claimants’ solicitor (Ms Christian) [p31(a)-31(g)], the Claimants’ relatives (Ms Zumrati Juma [p1119-1125], Ms Kathleen Mubanga 1180-1184 and Ms Constance Mubanga [p1194-1200]), the Right Honourable Charles Kennedy MP [p1253-1254], Sir Menzies Campbell QC MP [p1255] and two of the five British nationals previously held at Guantanamo Bay (Jamal Al-Harith [p1231-1252] and Tarek Dergoul [p1206-1230]). The exhibits to Ms Christian’s statement include a letter from two of the other British detainees (Shafiq Rasul and Asif Iqbal) [p870-872] detailing serious allegations of abuse. An Authorities Bundle containing copies of the various authorities referred to herein has also been filed2.
The jurisdiction of the Court
7. The position of British citizens held at Guantanamo Bay has already been considered by the Court of Appeal in R (on the application of Abbasi and another) v Secretary of State for Foreign and Commonwealth Affairs and another [2002] EWCA Civ 1598 (“Abbasi No. 1”) [AB/1]. The Court is referred, in particular, to paragraphs 57 to 67 and 104 to 107 of the judgment of the Court of Appeal. It is submitted that these passages make it clear that the Court has jurisdiction to entertain an application of this nature. Although relief was refused in that case, as will be explained below, there are now a series of important distinctions with the position as it stood at the time Abbasi No. 1 was decided and which merit a different result in respect of these applications. In particular:
At the time of Abbasi No. 1 there was no evidence of the policy of
seeking a fair trial abroad and only seeking return if such a trial were not possible, the Claimant in Abbasi No.1 was accordingly not able to frame the application for relief with sufficient precision;
The statements referred to at paragraph 4 (b) ii. above (and further
detailed below) have indicated that were the United Kingdom Government to decide to request the Claimants’ repatriation, such request would probably be acceded to. No such position had been reached at the time of Abbasi No. 1;
(c) The Claimants’ position must now be considered in the context of the
evidence of substantial grounds to fear a real risk that the Claimants have been and will continue to be subject to abuse amounting to torture and / or inhuman or degrading treatment, as well as that of indefinite and arbitrary detention. At the time of Abbasi No. 1 no such evidence of abuse was available;
(d) The United States Government has now indicated the nature of the trial process which it intends to use for the detainees (including Mr Abbasi whom it has stated is suitable for prosecution) and it is clear that that process does not comply with applicable international fair trial norms in a series of flagrant respects. At the time of Abbasi No. 1 the United States authorities had not indicated the nature of the trial process intended for detainees at Guantanamo Bay and had not designated Mr Abbasi as one of the detainees to be subjected to that process;
(e) The United States Court of Appeals of the District of Columbia has dismissed an appeal seeking to establish the jurisdiction of the United States courts over the detentions at Guantanamo Bay and, although this judgment has now been appealed to the Supreme Court, by virtue of the limited scope of the question framed for consideration by the Court, even if it is resolved in the detainees’ favour it will not lead to any immediate prisoner releases or any change to the conditions of detention. At the time of Abbasi No. 1 the appeal to the Court of Appeals was still pending and the question at issue had not been so narrowed;
(f) The United States has failed to respond to the intervention of the Inter-American Commission of Human Rights and it is now clear that that intervention will have no effect. At the time of Abbasi No. 1 the Commission had only recently requested interim measures and it was not clear what the result of that request would be.
8. The Claimants’ contentions on jurisdiction are further supported by the more recent decision of the Divisional Court in R (Campaign for Nuclear Disarmament) v The Prime Minister of the United Kingdom and others [2002] EHWC 2777 (Admin), where the Court held that the reason why it would not give an advisory declaration in that case about the interpretation of UN Security Council Resolution 1441 (an unincorporated international instrument) was that it was unnecessary to do so in order to resolve the rights and obligations of individuals in domestic law, [AB/2]. In contrast, the Court’s determination of an international law issue in this case is necessary for the purposes of determining the rights of the Claimants and the obligations of the Defendants under domestic public law and because the Defendants have expressly indicated that they will request the repatriation of the Claimants if the United Kingdom cannot be satisfied that they will be tried in accordance with the fair trial guarantees in international law, (cf. judgment paras. 36, 47 and 61).
The exercise of the Court’s jurisdiction
Serious violations of fundamental human rights suffered by the Claimants
9. It is submitted that the Court should approach this application on the basis that the Claimants have already suffered and continue to suffer serious violations of their right to liberty and security and of their right not to be subjected to torture, inhuman and/or degrading treatment and, in the case of Mr Abbasi, on the basis that it is currently proposed to subject him to a trial process which would be in flagrant breach of international fair trial guarantees.
The right to liberty and security of person
10. In Abbasi No. 1 the Court of Appeal recognised that the detention of prisoners at Guantanamo Bay without access to any tribunal to challenge the lawfulness of their detention was “in apparent contravention of fundamental principles … and international law”, (paras. 64, 107 [AB/1]). It is submitted that that conclusion could not now be disputed by the Defendants given the contents of, inter alia, the International Covenant of Civil and Political Rights (Article 9) [AB/3], the European Convention on Human Rights and Fundamental Freedoms (Article 5 [AB/4]), the Universal Declaration of Human Rights [AB/5]) and the English law of habeas corpus (see amicus curiae brief of the Commonwealth Lawyers’ Association as submitted to the United States Supreme Court) [AB/6]).
11. Although litigation in the United States courts continues on the question of jurisdiction over Guantanamo Bay and, very recently, “Administrative Review Procedures” were announced by the Defense Department in respect of the detentions, the position of the Claimants in this regard has not improved in material terms since judgment in Abbasi No. 1:
(a) The initial appeal against the United States District Court’s refusal of jurisdiction in Rasul et al v George W Bush et al (cf. Abbasi No. 1 paragraphs 15 & 107 iv) [AB/1]) was dismissed by the Court of Appeals on 11th March 2003. Although the Supreme Court subsequently granted the petitioners in Rasul a writ of certiorari this was limited to the following question: “Whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba”. Argument on this question was heard on 20th April 2004 and a judgment is expected in late June or early July. As will be apparent, however, resolution of this question by the Supreme Court will simply determine the threshold question of jurisdiction and, even if favourable to the petitioners, will not, of itself, lead to the immediate release of any detainees or any improvement in their conditions of detention. Furthermore, given the allegations of abuse now made, it is submitted that any further delay is of significance;
(b) The United States Government has taken no steps to comply with the precautionary measures urged upon it by the Inter-American Commission on Human Rights. In March 2002 the Commission authorised precautionary measures in favour of the detainees then held at Guantanamo Bay. The measures included a request that the United States authorities establish competent tribunals to determine the status of the detainees. Notwithstanding the jurisdictional objections raised by the United States a decision to maintain the measures was communicated on 23rd July 2002. A hearing on the precautionary measures took place on 16th October 2002, (see IACR Annual Report 2002 at paragraph 80 [p1112]). At the date of Abbasi No. 1 the effect of these precautionary measures was unclear as only 4 months had elapsed since the decision to maintain them and only 1 month had elapsed since the October hearing. Some 18 months later, however, no action appears to have been taken by the United States to comply with the precautionary measures and it seems that it can be safely concluded that none will be;
(c) On 18th May 2004 the Pentagon released an Order by Deputy Defense Secretary Paul Wolfowitz establishing Administrative Review Procedures [p965] in relation to the detainees at Guantanamo Bay. It is submitted that these intended procedures are seriously flawed in at least the following respects, and are accordingly incapable of amounting to a fair hearing according to applicable international norms:
The Review Procedures are expressly established on a purely discretionary basis and may be suspended or amended by the Secretary of State for Defense at any time, (see Order Clause 6). There is no independence in the decision maker, whose decisions cannot have the status of a judicial determination according to established common law and international norms. This is particularly unsatisfactory where in order to have access to the Review Procedures at all a detainee will, by definition, already have been the subject of a determination by the Secretary of State for Defense that his detention is appropriate;
There is no provision for any form of judicial oversight over the Review Procedures or appeal against Review Board determinations;
None of the detainees will have any right to legal assistance or legal representation. Their only right to assistance will be from a military officer subject to the same chain of command as the Review Board ending, ultimately, with the Secretary of State for Defense and the President, (see Order Clause 3B);
The reviews proposed will take place on an annual basis only;
Individuals – such as Mr Abbasi – whom the United States has indicated it intends to try before the Military Commissions - are not entitled to seek any review at all (see Order Clause 2 E i.);
The detainees will have no entitlement to see the evidence or allegations relied upon by the United States authorities and said to justify their detention other than insofar as they are contained in a written and unclassified “summary” prepared by a military officer (see Order Clause 3 A ii. & iii.);
There is no prohibition on the Review Boards from taking into account evidence obtained from the detainees while under interrogation without access to counsel at Guantanamo Bay or from taking into account evidence obtained as a result of torture or inhuman or degrading treatment.
The right not to be subjected to torture, inhuman or degrading treatment
12. At the time of Abbasi No. 1 it was not possible to suggest to the Court of Appeal that Mr Abbasi was not being treated humanely, (see judgment paragraph 5 [AB/1]). That is no longer the case. It is now alleged that:
(a) The isolation and other general conditions of detention to which the Claimants have been subjected amount to inhuman and degrading treatment;
(b) There is now credible evidence to suggest that further specific aspects of the Claimants’ detention may have amounted to torture and / or inhuman and / or degrading treatment;
(c) There is a real risk that failure by the Government to seek the Claimants’ repatriation will lead to them suffering irreparable psychological or physical harm or will exacerbate such harm as they have already suffered.
13. Each of these allegations is addressed in more detail below. If they are well-founded – as it is submitted that they are – they provide a further and compelling basis for the Court urgently to apply particularly close scrutiny to the Government’s failure to secure the repatriation of the Claimants. This is particularly so where the right not to be subjected to torture, inhuman or degrading treatment is absolute and non-derogable even in times of war or emergency, (see eg. ICCPR Article 7 [AB/2]; UDHR Article 3 [AB/4]; ECHR Article 3 [AB/3]).
Isolation and general conditions of detention
14. The Claimants have been held in effective isolation for the entirety of their time at Guantanamo Bay, (Mr Abbasi has in fact also been placed in solitary confinement at Camp Echo at Guantanamo Bay, (see 3rd WS of Zumrati Juma para. 10) [p1123]). They are not entitled to receive visits from legal representatives or relatives. Their correspondence is vetted, censored and subject to very significant delays or a total failure of delivery, (see 3rd WS of Zumrati Juma para. 13 [p1124], 1st WS of Zumrati Juma para. 19 [p1137], ZZJ1 pp. 37, 40 [p1144, 1148], ZZJ3 pp. 1, 3, 4, 8, 9, 10 [p1166]). There is no indication that they have been informed that any legal challenges are being brought on their behalf or that the United States Government has agreed that they will not face the death penalty.
15. Aside from the question of isolation, the standard conditions of detention at Guantanamo Bay are highly unsatisfactory: detainees are held in small cells or cages, these are lit 24 hours a day, they are given no or no adequate exercise facilities and inadequate toilet and washing facilities (see generally WS of Jamal Al-Harith at paras. 5-6, 19, 20 [p1231]). It is submitted that even without any specific allegations of abuse (as to which see below) these factors taken together show that the Claimants have been, and are being, subjected to inhuman and degrading treatment, (cf. e.g. Poltoratskiy v Ukraine– European Court of Human Rights 29th April 2003 at paras. 129 to 149; [AB] Yankov v Bulgaria- ECHR 11th December 2003 [AB]).
Specific aspects of the Claimants’ detention
16. The accounts provided by those British detainees who have now been released from Guantanamo Bay in fact raise a series of more specific concerns in respect of the conditions in which the Claimants are held and the treatment to which they have been subjected. These accounts further support the submission that the Court should approach this application on the basis that the Claimants are or may be being subjected to torture or at least inhuman and degrading treatment.
17. The accounts include allegations of serious physical assaults, use of pepper spray, attempts to force the signing of false statements, parading of women in front of more devout prisoners, sexual assaults, stripping, threats of rendition to third countries (such as Morocco and Egypt) where the detainees would be subjected to torture, lengthy interrogations of detainees while shackled to the floor, failure to allow detainees to use toilet facilities during interrogation with the result that they soil themselves, chaining of detainees in a “hog-tie” position, subjection to loud music, shaving of hair and beards, sleep deprivation, mocking of the detainees’ religious beliefs and withholding of basic items such as clothing or blankets. The Court is referred to the witness statements of Jamal Al-Harith ([p1231] at paragraphs 2, 7, 8, 10, 13, 18, 22-23, 27-31) and Tarek Dergoul ([p870] at paragraphs 17, 18, 28, 29, 31, 36, 37, 39, 40, 43) and to the letter from Shafiq Rasul and Asif Iqbal to President Bush dated 13th May 2004.
18. While it is recognised that the Court might generally exercise considerable caution when considering relying on evidence of this character alone, any contention that it is inherently implausible that the United States authorities would engage in such practices must now be seen in the light of the recent allegations and photographic evidence in respect of detainees held by the United States authorities in Iraq. This is particularly so where the United States authorities have repeatedly emphasised the allegedly “high value” of those held at Guantanamo Bay for the purposes of interrogation and intelligence gathering and where, according to an article in the Washington Post dated 9th May 2004, the Defense Department has approved interrogation techniques for use at Guantanamo Bay that permit “reversing the normal sleep patterns of detainees and exposing them to heat, cold and “sensory assault”, including loud music and bright lights” with the “harshest treatment” legitimate if deemed “militarily necessary” [p752]. The article referred, inter alia, to a “classified list of about 20 techniques .. approved at the highest levels of the Pentagon and the Justice Department.”
19. A copy of a report by Major General Taguba (“the Taguba report”) into prison abuses in Iraq has also made it clear that the worst abuses occurred between October and December 2003 in the period after Major General Miller – the commanding officer at Guantanamo Bay – had visited Iraq in September 2003 and provided advice as to how “the conditions for successful exploitation of the internees” could be set using as “baselines” the “operational procedures and interrogation authorities” in place at Guantanamo, (see Taguba report at [p817]; see also Observer article dated 16th May 2004 including allegations of video evidence of abuse at Guantanamo Bay; New Yorker article dated 17th May 2004 describing Major General Miller as having advised that “detention operations must act as an enabler for interrogation” [p756]). The Taguba report also appeared to suggest that a harsher regime was considered to be more appropriate in Guantanamo than in Iraq because “there is a strong argument that the intelligence value of detainees held at JTF Guantanamo is different than that of the detainees / internees held at Abu Ghraib”, [p822].
20. Finally in respect of the parallels between treatment of detainees in Iraq and Guantanamo the Court’s attention is directed to two very recent articles published in the Guardian Newspaper on 19th May 2004 [p797] and the Washington Post on 26th May 2004 [p811(a)-811(d)]. The first article claims that Major General Miller’s predecessor as commander of Guantanamo Bay – Brigadier General Baccus was removed from his post “apparently after frustrating military intelligence officers by granting detainees such privileges as distributing copies of the Koran and adjusting meal times for Ramadan”. The article, which was based in part on an interview with General Baccus, states that after his departure “the defence secretary … gave military intelligence control over all aspects of Guantanamo, including the MPs, and Gen Miller was appointed commander. Under his watch Guantanamo instituted a 72 point matrix for stress and duress which …. set out a guide for the levels of force that could be applied to detainees. These included hooding or keeping prisoners naked for more than 30 days, threatening by dogs, shackling detainees in positions designed to cause pain and extreme temperatures.” The second article reports Colonel Thomas Pappas – one of the officers questioned by General Taguba for the purposes of his report – as having claimed that the use of guard dogs to frighten Iraqi detainees was a technique promoted by General Miller. Colonel Pappas is reported as having claimed that General Miller “said that they used military dogs at Gitmo and that they were effective in setting the atmosphere for which, you know, you could get information”. Although this allegation has been denied by a spokesman for General Miller it obviously gives rise to further cause for serious concern.
21. Direct evidence of ill-treatment being suffered by the Claimants also emerges from the correspondence from Mr Mubanga to his family, written in Jamaican slang and, apparently as a consequence, undetected by the American authorities on their review of his correspondence, (see WS of Kathleen Mubanga para. 5 at [p1183]).
Real risk of further irreparable harm including suicide or other self-inflicted harm
brought about by conditions of detention
22. It has been alleged in the press that the First Claimant, Mr Abbasi, has attempted to commit suicide, (see 3rd Witness Statement of Zumrati Juma para. 7 [p1122]). There is now a considerable body of indirect or circumstantial evidence supportive of that allegation. According to press reports in January 2004 “by the end of September 2003 the official number of suicide attempts by inmates [at Guantanamo] was 32, but the rate has declined recently, - not because the detainees have stopped trying to hang themselves but because their attempts have been reclassified ….[as] “manipulative self-injurious behaviour” or S.I.B….. In the last six months there have been 40 such incidents”, (see New York Times article dated 17th June 2003 [p660]; Vanity Fair article dated January 2004 [p695] and WS of Jamal Al-Harith para. 27 [p1249]). Mr Abbasi’s more recent correspondence has also indicated that he is increasingly despairing at his situation, (see eg. ZZJ3 pp. 5, 7, 9 [p1166]). In these circumstances it is submitted that there is a risk of further irreparable harm being suffered by the Claimants both as a result of their conditions of detention and the treatment which they are subjected to, and as a result of actions on their own part which those conditions and treatment might drive them to. This risk underpins the urgency of the application.
The right to a fair trial before an independent and impartial tribunal
23. The flaws in the Military Commission process to which it is proposed to subject Mr Abbasi are addressed in more detail below. It is submitted that they would constitute flagrant violations of his right to a fair trial under international law, so providing a further basis for the exercise of the Court’s jurisdiction and for the grant of relief of the kind sought by this application.
Probability that a formal and unequivocal request to the United States Government would lead to the repatriation of the Claimants
24. A number of important statements in respect of the Claimants’ position have been made by public officials in both the United States and the United Kingdom in recent months. It is submitted that the natural reading of these statements is to the effect that by November 2003 or, at the latest, February 2004 the position had been reached whereby the United Kingdom Government could probably have brought about the repatriation of the remaining British detainees at Guantanamo by making a formal and unequivocal request for their return. If that is the correct analysis of the position then it would, of course, represent a clear and very significant distinction from the position as it stood at the time of Abbasi No. 1 when the Court of Appeal referred to Mr Abbasi’s ongoing detention and stated “How long this state of affairs continues is within the sole control of the United States executive”, (see judgment para. 58).
25. The particular statements relied upon by the Claimants were set out in the pre-action protocol letter sent to the Treasury Solicitor on 15th March 2004 [p523]. By way of example only, on 11th February 2004, the Prime Minister responded to a question from the Right Honourable Charles Kennedy MP as follows:
“Mr Kennedy…. Has [the Prime Minister] set a deadline with the American Government for this issue [i.e. the position of the British detainees at Guantanamo Bay] to be resolved once and for all?
The Prime Minister No there is not a deadline for that, and in a sense, it is for us to ultimately decide [emphasis added], if we cannot reach agreement that we bring them back here…”
A copy of Hansard’s report of this exchange is at [p647].
26. The Claimants’ analysis of what these various statements reveal as to the potential effect of a formal and unequivocal request by the United Kingdom Government for the repatriation of the Claimants is, furthermore, very substantially supported by the comments made by President Bush to Mr Kennedy and Sir Menzies Campbell in November 2003. Both Mr Kennedy and Sir Menzies Campbell have provided witness statements in support of this application on this issue. As these statements record, in November 2003 President Bush informed Mr Kennedy and Sir Menzies “As far as we are concerned, if the British Government wants the British detainees back again, here are the airline tickets”, [p1254].
Legitimate expectation
27. The statement of the Prime Minister set out above, and other similar statements from the Foreign Secretary, the Home Secretary and the Attorney General referred to in, and exhibited to, Ms Christian’s witness statement (see eg. statements referred to in Christian Khan’s 15th March 2004 letter [p531]) have, it is submitted, given rise to a legitimate expectation that a formal and unequivocal request for repatriation would be made unless the United Kingdom Government was satisfied that the Claimants would be tried by United States authorities in a manner consistent with the fair trial guarantees in international law. For the reasons set out below it is submitted that the Government cannot be so satisfied and that there is no realistic prospect of it being so satisfied in the future.
28. It is also noteworthy that in Abbasi No. 1 the Court of Appeal expressly identified conduct contrary to a legitimate expectation as one of the bases upon which the Courts might review the Foreign Office’s conduct in respect of British citizens (see paragraph 106 iii) & see also R v Secretary of State for the Home Department ex parte Launder 1997 1 WLR 839 [AB]; R v North and East Devon HA ex p Coughlan [2001] QB 213 [AB] and Ng Siu Tung & Others v Director of Immigration Hong Kong CFA 10th January 2002 [AB]).
No prospect of Claimants being tried by United States authorities in a manner consistent with fair trial guarantees in international law
For the reasons set out below there is no reason to believe that either of the Claimants will be afforded a fair trial by United States authorities. Furthermore, those authorities have now also indicated that detainees could be held indefinitely at Guantanamo Bay regardless of any trial process (see eg. USA Today article dated 11th September 2003 [insert]). In these circumstances it is submitted that even a conclusion that the Military Commissions were capable of affording a fair trial could not justify a failure to act on the part of the United Kingdom Government.
Mr Mubanga
30. There has been no suggestion by the United States authorities that they have any intention of bringing any form of prosecution against Mr Mubanga. Accordingly, at least so far as he is concerned, there can be no question of the fairness or otherwise of the proposed Military Commissions or other processes being relevant to his application or capable of justifying the Government’s failure to request his return.
Mr Abbasi
31. Mr Abbasi’s factual position is different. In July 2003 the United States authorities indicated that they wished to put him on trial before a Military Commission. Between that time, and at least November 2003, negotiations and discussions were apparently held by representatives of the United States authorities and the United Kingdom Government. Notwithstanding these negotiations, there remain a number of what are submitted to be irredeemable flaws in the Military Commissions before which it is proposed that Mr Abbasi and others will be tried. The various Department of Defense Military Commission Orders (“DMCOs”) and Military Commission Instructions (“MCIs”) regulating the proposed Commissions and a number of reports from different bodies on the same are attached to the witness statement of Ms Christian. The Court is referred in particular to the judgment of the Human Rights Chamber for Bosnia & Herzegovina in Boudella and Others v Bosnia and Herzegovina (13 BHRC 297 – see judgment of the Court at paragraphs 286-299 and partly dissenting judgment of Judge Picard at pp. 381-382 [AB]), Lord Steyn’s FA Mann Lecture dated 25th November 2003 (see especially p. 23 [AB]) and the recent reports of the American Civil Liberties Union dated March 2004 and that from the New York Bar Association dated 18th March 2004, [p1073]. The particular matters which, it is submitted, are fatal to any contention that the Commissions could provide Mr Abbasi with a fair trial include the following:
(a) The Commissions would not be independent of the Executive in the structural sense and the detainees will accordingly not be tried before an “independent and impartial tribunal”: The Secretary of State for Defense or his designee is to be the “Appointing Authority” responsible for, inter alia, appointing the Commissions and approving all charges (DMCO No. 1 Clauses 2, 4, 6(2) [p899]) and the Members of the Commissions, the Prosecuting Counsel and the Defence Counsel are all to be military officers under the ultimate command of the Secretary of State and the President (DMCO No. 1 Clauses 4A-C), (cf. Article 14(1) ICCPR; Article 6 ECHR; see also New York Bar Association Committee on Federal Courts report “The Indefinite Detention of Enemy Combatants: Balancing Due Process and National Security in the context of the War on Terror”, 6th February 2004 (revised 18th March 2004 at p. 125 [p1073]);
(b) The Commissions will not include any civilian judges;
(c) There is no prohibition on the use before the Commissions of evidence obtained from a detainee during interrogation and while unrepresented, even if that evidence is properly categorised as having been obtained as a result of torture or inhuman or degrading treatment (see DMCO No. 1 at 6D (1) [p899]). Admission of such evidence would, it is submitted, be contrary to both established principles of the common law (precluding reliance in a criminal case of material obtained involuntarily or by oppression and in violation of the privilege against self-incrimination) and also to established principles of international law recognised by both the United Kingdom and the United States, (see Convention Against Torture Article 15 [AB]; Guidelines on the Role of Prosecutors (as adopted by the 8th UN Congress on the Prevention of Crime and Treatment of Offenders 27/8/90 – 7/9/90 [AB]; Rome Statute Article 69(7) [AB/]; UNTAET Rule 34.2 [AB]). It is also noteworthy in this regard that according to a Times Newspaper article published on 10th March 2004 the Attorney General and the Director of Public Prosecutions have agreed that “any testimony or evidence from Guantanamo Bay is inadmissible in a British court”, [p731];
(d) For the reasons indicated above it is submitted that all statements made by Mr Abbasi during his detention should be treated as having been obtained as a result of, at least, inhuman and degrading treatment but even aside from any question of ill treatment, any incriminating statements made by a detainee in the absence of legal representation and which feature in either the charges against that detainee or the evidence against him will be likely to violate that detainee’s fair trial rights, (cf. eg. Ocalan v Turkey ECHR 12th March 2003 at paragraphs 140-141 [AB]);
(e) The monitoring of communications between Defence Counsel and their clients is expressly permitted, (DMCO No. 3). Notwithstanding the prohibition on use of information so gathered before the Military Commissions this is bound to have a chilling effect on those communications, particularly in circumstances where even acquittal before the Commissions gives no entitlement to release;
(f) It is now over 2 ½ years since Mr Abbasi was detained. He has yet to be charged with any offence let alone tried. In these circumstances there is very real doubt as to whether he can be tried “within a reasonable time” as required by international norms and there is no indication that he has been “informed promptly … of the nature and charge against him”. As Mr Abbasi’s letter dated 20th February 2004 stated “I know as much about my situation now as I did when I first got captured” (ZZJ3 p. 10 [p.1178]) cf. e.g. ICCPR Article 14(3)(a), (c) [AB]; ECHR Article 6 [AB]);
(g) There is no independent appeal process outside the military chain of command. In contrast to the US courts-martial system, conviction before a Military Commission would not be subject to any appeal to, or review by, any civilian court. Instead they are subject only to the control of the Secretary of State for Defense and the President (DMCO No. 1 supra at s. 6H(6); MCI No. 9 dated 26th December 2003 [p958]; MCI No. 6 30th April 2003 [p948] cf. ICCPR Article 14(5) [AB]; ECHR 2nd Protocol Article 2 [AB]; Rome Statute Article 81 [AB]; see also ACLU report at pp. 4-5 [1062]). Aside from the structural lack of independence this gives rise to there are obvious further concerns as a result of prejudicial statements made by both Mr Rumsfeld and President Bush in respect of those held at Guantanamo Bay. By way of example only, and as reported by the Sunday Times dated 22nd February 2004, Mr Rumsfeld described all those held at Guantanamo Bay as “very tough, hard core, well-trained terrorists”, (see [721]);
(h) A lower standard of evidence would apply before the Commissions than would be the case before ordinary courts with, in particular, hearsay evidence being admissible, (see DMCO No. 1 of 21st March 2002 [p878]; Amnesty International (“AI”) Press Release dated 4th July 2003 [p976]);
(i) Motions to strike out a case are referred to the Appointing Authority with responsibility for approving charges in the first place (Military Commission Order No. 1 of 21st March 2002 at s. 6A [p878] and MC Instruction No. 8 of 30th April 2003 at s. 4A [p954]);
(j) Defendants before the Commissions have no right to compel the attendance of witnesses. The right of subpoena is granted to the Prosecution but not to the Defence, (see ACLU report; MCI No. 3 Clause 3 B 3) [p925] cf. MCI No. 4 [p929]);
(k) Trial rules – including the definition of crimes alleged – can be changed at any time, even during a trial, by military officials;
(l) The right to civilian defence counsel of the accused’s choice is hampered by a series of practical and procedural restrictions such that Mr Abbasi will not be able to communicate with, or be represented by, counsel of his own choosing (cf. ICCPR Article 14(3)(b), (d) [AB]; see also American Bar Association report 301, adopted August 2003, at pp. 8-16 [p1040]; Lawyers Committee for Human Rights Briefing Paper, “Trials Under Military Order: A Guide to the Final Rules for Military Commissions”, updated 17th July 2003 at pp. 17-19 [p996]; DMCO No. 1 21st March 2002 at s. 4C [p878] and MC Instruction No. 5 of 30th April 2003 [p935];
(m) The Commissions are discriminatory in that US nationals charged with the same offences cannot be tried before them, (cf. Article 14(1) ICCPR [AB]; see also ACLU report at pp. 9-10 [p1074]; AI report “USA – The threat of a bad example” August 2003 at p. 40) [p1021];
(n) There has been no public indication from the United States authorities that any of these matters will be the subject of remedy prior to the commencement of the proposed Military Commissions. There has been no public statement from the United Kingdom authorities of any expectation to this effect.
32. In these circumstances, it is submitted that the fact that Mr Abbasi is to be put before a Military Commission, far from providing some answer to the complaint at his open ended detention and ill-treatment, represents a further risk that he will be subjected to a flagrant violation of his rights in international law and a further ground for the intervention sought from the United Kingdom Government by this application.
33. It is also notable in this regard that it appears to be the Government’s current view that the Military Commissions do not comply with international standards. As the pre-action protocol letter of 15th March 2004 [p528] pointed out, on 19th February 2004 the Foreign Secretary stated that “Although significant progress has been made, in the Attorney General’s view the military commissions, as presently constituted, would not provide the type of process which we would afford British Nationals”. In these circumstances it is submitted that it would be irrational for the Government to delay making a formal request for Mr Abbasi’s return by reference to his proposed trial.
Failure to make any formal or unequivocal request for the repatriation of the Claimants
34. It is submitted that it was implicit in the Prime Minister’s answer to Mr Kennedy referred to above, that, as at 11th February 2004, no formal and unequivocal request for the repatriation of the Claimants had been made of the United States. There has, furthermore, been no indication either in public statements or in private statements to the Claimants’ families since that time that that position has changed. In order to be certain of the position, in the letter before action dated 15th March 2004 and sent to the Treasury Solicitor, the Claimants’ solicitors asked the Treasury Solicitor to respond to the question “have the Government called for the return of Mr Abbasi and Mr Mubanga and others and if not why not?”, (see paragraph 9 [p532]) but in its response dated 29th March 2004 [p536] the Treasury Solicitor failed to provide a clear answer and instead stated as follows:
“…..The Government is not prepared to disclose publicly the detail of its diplomatic negotiations with the US Government as to do so could jeopardize or undermine their objective”
35. In response to this letter the Claimants’ solicitors sought further clarification from the Treasury Solicitor by letter dated 13th April 2004 and invited confirmation as to “whether the Government of the United States of America have been asked formally to return the remaining detainees and, if not, why the request has not been made. If it has been made, what was the response?” [p542]. The Treasury Solicitor responded by saying simply “I confirm that I am not instructed to add anything further to my letter of 29th March 2004”, [p543].
36. Against this background the Court is invited to proceed on the basis that no formal and unequivocal request for the repatriation of the Claimants has been made either since November 2003 or at all. That position is further supported by the comments made by the Foreign Secretary in a recent meeting with Mr Mubanga’s sister where Mr Straw referred to “intelligence on Martin” as being behind the failure to repatriate him with the other detainees released earlier this year, (see WS Kathleen Mubanga at para. 6 [p1183]).
Real risk that failure to make a request of the kind sought will lead to irreparable psychological or physical harm to the Claimants
37. The Claimants’ position in this regard has already been set out in paragraphs 12 to 22 above.
Domestic measures sufficient to meet national security concerns
38. Although – save for the Foreign Secretary’s general remark referred to above - the Government has not indicated that it has any specific national security concerns in respect of either of the Claimants, the existence of such concerns would, in any event, not justify the failure to act complained of in this case. National security cannot outweigh the need to secure protection for the Claimants from violations of their non-derogable rights. Furthermore national security is already properly taken into account by the potential for criminal prosecutions under the Terrorism Act 2000 and the Ant-terrorism Crime and Security Act 2001 and absent a criminal prosecution national security can be appropriately protected by use of the prerogative powers of security surveillance and withdrawal of passport facilities for an appropriate period in return for governmental assistance to secure the Claimants’ return.
Urgency
39. As submitted above there is now real and substantial concern that any further detention of the Claimants at Guantanamo Bay could lead to their suffering irreparable harm. In these circumstances the application is made on an urgent basis.
Conclusion
40. For the reasons set out above it is respectfully submitted that the failure of the United Kingdom Government to make a formal and unequivocal request for the repatriation of the Claimants is unlawful and that the relief sought should be granted by the Court.
Nicholas Blake QC
Rabinder Singh QC
Timothy Otty
Dated 26th May 2004
1 numbers in bold and square brackets hereafter are to the page number of the document referred to in that bundle.
2 The numbers prefixed AB and in bold and square brackets are to the tab number location of the authority referred to in that bundle.