On 29 November 2022, Alkarama submitted the case of Mustafa Faraj Mohammad Masud AL JADID AL UZAYBI (also known as “Abu Faraj AL LIBI”) to the UN Working Group on Arbitrary Detention (WGAD). This Libyan national has been arbitrarily detained in Guantánamo Bay detention centre since his transfer from a CIA “black site” on 4 September 2006.
AL JADID AL UZAYBI was arrested on 2 May 2005 in Pakistan, by Pakistani special forces who rendered him to US forces, after which he was kept in black sites in Afghanistan and Romania where he was subjected to torture to the point of losing his hearing.
Since his transfer to Guantánamo as a “High-Value Detainee” in September 2006, he has not been able to meaningfully challenge the legality of his detention and has been denied appropriate medical care and rehabilitation.
He has been characterised by US military medical personnel as “the most severely impaired and incapacitated detainee at Guantánamo Naval Base”, because of the torture and mistreatment inflicted on him by US forces for the past nearly two decades.
Even after the end of hostilities in Afghanistan and despite a psychiatric assessment by a US military psychiatrist that he does not pose any threat, his request to be transferred to a safe country to reunite with his family and receive appropriate health care have repeatedly been denied.
Today, this complaint sent by Alkarama to the WGAD remains one of the last remedies at AL JADID AL UZAYBI’s disposal.
Enforced disappearance and torture within the CIA’s rendition program
Suspected of being associated with al-Qaeda, AL JADID AL UZAYBI has been arrested on 2 May 2005 in Mardan (north Pakistan) by Pakistani special forces and was extraordinarily rendered to CIA custody. After his extrajudicial rendition, and for a year-and-a-half, he remained unaccounted for as he was taken by the CIA from one “black site” to another including in Afghanistan and Romania.
While detained in these black sites, AL JADID AL UZAYBI was subjected to torture inflicted by CIA agents in the form of “enhanced interrogation techniques”. The United States government officially recognised having subjected AL JADID AL UZAYBI to at least the following acts: “(1) dietary manipulation, (2) nudity, (3) attention grasp, (4) walling, (5) facial hold, (6) facial slap or insult slap, (7) abdominal slap, (8) cramped confinement, (9) wall standing (10) stress positions (11) water dousing, and (12) sleep deprivation (more than 48 hours).
As a result of torture, AL JADID AL UZAYBI has developed several health problems, including ‘severe hearing loss in both ears’ (100% loss in left ear and proximately 50% in the right ear).
On 4 September 2006, he was taken to the Guantánamo Bay detention camp where he remains held since then, without any charges nor trial. While AL JADID AL UZAYBI is currently held under the jurisdiction of the US government, Alkarama submitted the complaint against the US as well as Pakistan and Romania, also jointly responsible for the arbitrary arrest, enforced disappearance, and the torture of AL JADID AL UZAYBI.
A ‘Kafkaesque’ situation where the rule of law is rendered meaningless...
Twenty years after 9/11, the Guantánamo Bay detention facility continues to hold detainees in disregard of fundamental human rights. Despite promises made, reiterated requests for its closure including by successive High Commissioner for Human Rights and independent United Nations (UN) experts over the years have gone unheeded.
The case of AL JADID AL UZAYBI stands as a striking example of what UN experts have called a ‘Kafkaesque situation where the rule of law was meaningless and the coercive and brutal power of the State ascendant’.
AL JADID AL UZAYBI arrived in Guantánamo on 4 September 2006, as he was transferred from a black site in Romania. He was considered by the CIA as a ‘High Value Detainee’ (HVD) as he was suspected of being associated with al-Qaeda and to ‘pose a threat to the USA or its allies’.
On 8 February 2007, AL JADID AL UZAYBI was presented, for the first time, to the Combatant Status Review ‘Tribunal’ (CSRT), an administrative authority acting under the control of the executive. The CSRT was in charge of carrying out a cursory administrative review to establish whether the detainees were ‘enemy combatants’, and if they were to be presented before a military commission trials.
However, following this first review process, the CSRT did not charge AL JADID AL UZAYBI, nor did it clear him for release. During this process he was not assisted by a lawyer but assigned a Personal Representative – a military official without the status and privileges of an attorney – to represent him during the process.
On 18 August 2016, ten years after his CSRT review, AL JADID AL UZAYBI became eligible for his first review by the Periodic Review Board (PRB), another administrative interagency board composed exclusively of members of the executive security agencies. It was established to review whether continued detention of particular individuals held at Guantánamo remained ‘necessary to protect against a continuing significant threat to the security of the United States’.
As he was not assisted by a lawyer, he was not able to meaningfully challenge the legality of his detention, or the allegations of the US authorities which are largely based on declarations made by unknown individuals, or statements made by other CIA detainees under torture.
Since then, the PRB kept approving his detention without, however, pronouncing itself of its legality, including after the last hearing which happened in August 2022, and during which he was for the first time assisted by lawyers.
On 11 May 2009, a habeas corpus petition was filed on his behalf after he was able to meet with a private counsel for the first time and challenge the legality of his detention before the federal district court for the District of Columbia. However, his habeas case is still pending more than 13 years after the initial submission of the writ, which largely exceeds any definition of ‘reasonable time’.
Today, AL JADID AL UZAYBI’s detention has no end in sight. Almost 20 years after his arrest, the US authorities have never produced a single witness or incriminating material evidence to support AL JADID AL UZAYBI’s continued detention.
An unjustifiable continued detention, under both international and US laws
Alkarama highlighted that, while the detention of AL JADID AL UZAYBI was in any case illegal under international law, it was also baseless even the US doctrine of continued law-of-war detention. According to the US’s doctrine, continuous detention of an ‘enemy combatant’, without trial would be justified under the Authorization for Use of Military Force (‘AUMF’) passed by Congress in response to the attacks of September 11, 2001.
Such detentions were based on the sole rationale that ‘enemy combatants’, like AL JADID AL UZAYBI, could be detained without charges in order to prevent their return to the battlefield, and until the ‘end of hostilities’.
However, this does no longer apply since former President Trump decision to withdraw US troops from Afghanistan and to sign an agreement with the Taliban putting an end to hostilities. His successor in the White House, President Joe Biden proclaimed on 31 August 2021 that ‘[l] ast night in Kabul, the United States ended 20 years of war in Afghanistan’.
It necessarily follows that even under the restrictive US doctrine of continued law-of-war detention, and a fortiori under IHRL standards, the indefinite detention of AL JADID AL UZAYBI is manifestly devoid of any legal basis.
In spite of this, the PRB decided after the last review of his detention that ‘continued law of war detention of the detainee remains necessary to protect against a continuing significant threat to the security of the United States’.
The PRB justified its decision in one brief sentence recalling AL JADID AL UZAYBI’s alleged ‘extensive and lengthy history with al-Qaeda, to include leadership roles’, without being able to expand on or prove such claims and charge him accordingly, after nearly 20 years of arbitrary detention. Today, AL JADID AL UZAYBI’s situation amounts to indefinite detention, which in itself constitutes a form of torture.
In its submission Alkarama requested the UN independent experts to recognise the arbitrary detention of AL JADID AL UZAYBI and to urge the State party to take the steps necessary to release him and ensure his transfer to a third country in compliance with Article 3 of the Convention against Torture and to provide him an enforceable right to compensation for damages resulting from the various violations.
Alkarama requested the WGAD to call on the US to take concrete measures to end indefinite detention in Guantánamo Bay and rehabilitate detainees like AL JADID AL UZAYBI by allowing them to return to their families and get appropriate care.