Access to justice is a right that has emerged with the rise of new social individualism and is arguably one of the most basic and fundamental requirements of an unbiased justice system. Providing ‘effective’ access to justice means giving someone suspected of wrongdoing one of the most rudimentary essentials: a voice. A basic tenet of the rule of law is that legal redress is accessible by all and not exclusive to any one part of society. The concept of ‘access’ is debated domestically in topics such as legal aid, where cuts thereto mean that many litigants will now be representing themselves. This article is not about limited access or legal aid but concerns UK and US foreign policy. In a post-9/11 world, access to justice for those accused of terrorism is ashamedly nonexistent. Together, the UK and US have created a system whereby an individual accused of associating with a terrorist organisation could be sent to Guantanamo Bay immediately (without charge or trial) for an indefinite period of time.
The story of Shaker Aamer
Shaker Aamer is a Saudi national and a British resident. Having moved to London in 1996, he worked as an Arabic translator for a solicitors’ firm working on immigration cases. In June 2001, Shaker and his family went to Kabul to volunteer for an Islamic charity. Human rights campaigner Andy Worthington holds the view that Afghan bounty hunters captured Shaker and subsequently sold him to US forces. He was taken to Guantanamo Bay in February 2002. Shaker received no trial and no charge and, after 11 years in the facility, has yet to be released. However, he has been cleared for release twice: once by the Bush Administration and again in 2008 by the Obama Administration. Despite this, Shaker is subjected to daily abuse. For him, humiliation and intimate genital searches are prerequisites for gaining access to a lawyer. It is difficult to describe something more contrasted to effective access to justice.
How did suspected terrorists become the exception to access to justice?
The post-9/11 world saw a declaration on a ‘war on terror.’ This ‘war’ has been based on an undefined concept with a yet-to-be-named state in which ‘terrorists’ can be found. Additionally, the battle between a state and individuals is one that international law was wholly unprepared for, as it traditionally only dealt with inter-state conflict. This was the mandate for passing legislation removing all human rights from those accused of terrorism. Former US President George Bush referred to those suspected of terrorism, or even just affiliated therewith, as ‘enemy combatants’. This new concept effectively put detainees outside protections of the Geneva Conventions or Prisoner of War status. Such a curtailment of human rights through legislative anarchy went largely unnoticed among the aftermath of the catastrophic scenes of 9/11.
Similarly, the reasons for authorising the capture of those suspected of terrorism were vague, to say the least. Consequently, many people labelled by former US officials to be ‘the worst of the worst’ in actual fact were not.
Shaker was taken from his British wife and children; the youngest born on the day he went to Guantanamo. Along with charitable organisations like Reprieve and Cage Prisoners, Shaker’s family campaign tirelessly for his return.
Why is Shaker still in Guantanamo Bay?
The most alarming issue in this case is the lack of justification for Shaker’s continued detention, despite his previous clearings for release. Before looking at theories around why he is still in Guantanamo Bay, it is worth mentioning that US President Barack Obama has pledged on two occasions to close the facility. It is recognised by Obama’s Administration that of the 166 prisoners still held at the camp, 86 of those have been recommended for release, rendering their detention futile. Moreover, the camp is expensive to run, costing American taxpayers around $1.2 million per day.
The reasons given by many for the continued detention of Shaker are particularly disturbing. Shaker filed a complaint against UK security services to the secretive Investigatory Powers Tribunal last month. The accusation was that the security services had defamed Shaker in the US to ensure his continued detention. Their alleged motive for this relates to other complaints that Shaker has voiced, including the way in which he was interrogated at Bagram prison in Afghanistan.
It has taken 11 years for Shaker to be granted access to a tribunal. Even then, the integrity of that tribunal is questionable, as he will hear very little about the case put against the UK security services, if anything at all.
Reprieve Legal Director Kat Craig states that:
All the evidence points to briefing against [Shaker] by the UK intelligence services, who are terrified that his release will allow him to speak freely about the part they played in his torture and rendition.
UK Prime Minister David Cameron has stated that he has personally asked Obama to ensure that Shaker is returned home to London. However, political red tape seems to be delaying the process, which has contributed to an extreme deterioration in Shaker’s physical and mental health.
Details of the nature of Shaker’s condition were outlined in a letter from his lawyer, Clive Stafford Smith, to UK Foreign Secretary William Hague in 2010:
- Arthritis in the knees and fingers, stemming from Shaker’s abuse in custody
- Serious asthma problems (exacerbated, almost to the point of asphyxiation, when the US military sprays him with pepper spray during their periodic forcible cell extractions, known as FCEs)
- Heartburn and acid reflux exacerbated by his diet
- Prostate pain and serious problems with urination
- Problems with his ears, including the loss of balance and dizziness
- Neck, shoulder and back pain resulting from the beatings he has suffered
- Serious nail infections
- Ringworm and itchiness between his legs
- Constant haemorrhoids and rectal pain
- Extreme kidney pain
Three years on and Shaker’s health has worsened. This is following a six month hunger strike, which was met with horrific scenes of force-feeding. The reality of the situation is that Shaker will die in Guantanamo Bay unless the campaign is strong enough to cut through the political red tape and bring him home.
Irrespective of whether Shaker’s story disturbs your basic understanding of humanity, as aspiring lawyers this blatant and extreme violation of access to justice should be reason enough for getting involved in the growing campaign for his release.
More information about how to get involved can be found at: