AMR 51/086/2011

USA

The death penalty has been approved as an option for the upcoming trial of a Saudi Arabian man held at the US naval base at Guantánamo Bay in Cuba. He is to be tried by military commission, under a system which fails to meet international fair trial standards.

Saudi Arabian national ‘Abd al Rahim Hussayn Muhammed al Nashiri has been in US custody for nearly nine years. Arrested in Dubai, United Arab Emirates, by local security forces in October 2002, he was handed over to US agents a month later, and held in secret custody at undisclosed locations by the Central Intelligence Agency (CIA) for almost four years, during which time he was subjected to torture and other ill-treatment and to enforced disappearance. In September 2006, he was transferred to US military custody at Guantánamo, where he remains.

On 20 April 2011, the US Department of Defense announced that ‘Abd al Rahim al Nashiri had been charged under the Military Commissions Act of 2009 with, among other things, “murder in violation of the law of war”, and “terrorism”. He is accused of having had a leading role in the attack on the USS Cole in Yemen on 12 October 2000 in which 17 US sailors were killed and 40 others wounded, and in the attack on the French oil tanker MV Limburg in the Gulf of Aden on 6 October 2002, in which a crew member was killed.

The prosecution’s recommendation that the death penalty be an option at the trial was approved on 28 September 2011 by the "convening authority" of the military commissions, retired Navy Vice Admiral Bruce MacDonald, when he referred the charges against ‘Abd al Nashiri on for trial as capital charges.

‘Abd al Nashiri’s arraignment hearing, at which the charges against him may be read and he will be called upon to plead, is scheduled for 9 November 2011 at Guantánamo. No date for his actual trial has yet been set.

Amnesty International opposes the death penalty unconditionally. While international human rights law recognizes that some countries retain the death penalty, it prohibits the imposition and execution of a death sentence based on a trial that has not met the highest standards for fairness. The US military commissions fail to meet international fair trial standards. Any use of the death penalty after such trials would violate international law.

PLEASE WRITE IMMEDIATELY in your own language:

* Express concern that the charges against Abd al Rahim al Nashiri have been referred on for trial as capital;

* Point out that international law prohibits the death penalty based on any trial that has not met the highest standards of fairness, and arguing that the military commission trials do not meet such standards;

* Urge that the military commissions be abandoned in favour of trials in US District Court and that pursuit of the death penalty be dropped in any case, whatever the trial forum;

* Condemn the USA’s failure to respect international human rights law in the case of ‘Abd al Rahim al Nashiri over the past nine years, heightening the need for rigorous respect for human rights principles now.

PLEASE SEND APPEALS BEFORE 28 NOVEMBER 2011 TO:

President

President Barack Obama

The White House, 1600 Pennsylvania Avenue NW

Washington DC 20500, USA

Fax: + 1 202 456 2461

Email: http://www.whitehouse.gov/contact/

Salutation: Dear Mr President

Secretary of Defense

The Honorable Leon Panetta

Secretary of Defense

1000 Defense Pentagon

Washington DC 20301-1000, USA

Fax: + 1 703 571 8951

Salutation: Dear Secretary of Defense

Also send copies to diplomatic representatives accredited to your country.

USA:S AMBASSAD

DAG HAMMARSKJÖLDSVÄG 31

115 89 STOCKHOLM

FAX 08-661 19 64

Please check with your section office if sending appeals after the above date.

ADDITIONAL INFORMATION

Despite being named on an indictment in US federal court only months after his arrest in 2002, ‘Abd al Nashiri was not brought promptly before a judicial authority and brought to trial without undue delay, as required by international law. Instead he was detained in secret until he was transferred to Guantánamo in 2006. During his time in CIA custody, he was subjected to torture, including by “water-boarding”, where the process of drowning the detainee is begun, as well as other cruel, inhuman or degrading treatment. Information released into the public domain indicates ‘Abd al Rahim al Nashiri was also subjected to shackling, hooding and nudity as well as to a number of “unauthorized” techniques, including being threatened with a handgun and a electric power drill, “potentially injurious stress positions” and the use “of a stiff brush [used in bathing] that was intended to induce pain”, and “standing on al-Nashiri’s shackles, which resulted in cuts and bruises”. He was held incommunicado in solitary confinement at undisclosed locations for nearly four years. No one has been brought to justice for the human rights violations, including the crimes under international law of torture and enforced disappearance, to which ‘Abd al Rahim al Nashiri and others held in the CIA secret program were subjected.

In 2008, the Bush administration charged ‘Abd al Rahim al Nashiri for trial by military commission. The charges were dismissed after President Barack Obama took office and ordered a review of the Guantánamo cases. In November 2009, the US Attorney General announced that the case was being sent back to the Department of Defense for prosecution by military commission.

The USA responded to the attacks of 11 September 2001 by developing a global “war” framework under which its interpretation of the laws of war would apply to the exclusion of international human rights law. Torture and other ill-treatment, enforced disappearance, secret detainee transfers, indefinite detention outside the criminal justice system, and unfair trials by military commission were among the practices that resulted. The military commission system is now in its third version since President Bush first established it by executive order in November 2001 (See: USA: Trials in error. Third go at misconceived military commission experiment, July 2009, http://www.amnesty.org/en/library/info/AMR51/083/2009/en.) However, the commissions still fail to meet international fair trial standards. Among other flaws, they lack independence, whether in substance or appearance, from the political branches of government that have authorized, condoned, and blocked accountability and remedy for, human rights violations committed against the very category of detainees that will appear before them. The commissions are creations of political choice, not tribunals of demonstrably legitimate necessity, and turning to them in this context against these detainees contravenes international standards. Moreover, the commissions are discriminatory. If any Guantánamo detainee slated for prosecution was a US national, he could not be tried by these military commissions: Under US law he would have the right to a civilian jury trial in an ordinary federal court, not before a panel of US military officers operating under rules and procedures that provide a lesser standard of fairness. The same standard of fair trial should be applied to all, regardless of national origin: that is a fundamental principle of human rights and the rule of law.

The UN Human Rights Committee, established by the International Covenant on Civil and Political Rights (ICCPR) to oversee implementation of that treaty, has emphasised that fair trial guarantees are particularly important in cases leading to death sentences, and that “the imposition of a sentence of death upon conclusion of a trial, in which the provisions of article 14 of the Covenant have not been respected, constitutes a violation of the right to life (article 6 of the Covenant).” In 2007, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms called on the USA to disestablish the military commissions. In 2009, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions urged the USA not to conduct any capital prosecutions before military commissions.

Name: ‘Abd al Rahim Hussayn Muhammed al Nashiri

Gender: m