In November 2022 (and publicly released on April 28, 2023), the U.N. Working Group on Arbitrary Detention, which has no enforcement powers, urged the U.S. to release immediately a prisoner (Zayn al-Abidin Muhammed Husayn) who was captured in Pakistan in 2002 and became the first prisoner at a CIA “black site” (secret prison) where he was waterboarded and thereafter held until he was transferred to the Guantanamo prison in 2006. Ever since then he has been held there without charges. The U.S. has argued that although this prisoner was never a member of Al Qaeda, he allegedly helped jihadists reach Afghanistan for training before the 9/11 attacks.[1]
The U.N. Working Group found that this prisoner “had been denied a meaningful review of his detention and so was being unlawfully held. The appropriate remedy would be to release Mr. Zubaydah immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law.’” Before his transfer to Guantanamo, he was held in CIA sites in Afghanistan, Poland, Morocco, Lithuania and Thailand; in the last of which he was waterboarded, deprived of sleep and confined in a coffin-like box.
His attorney, “Lt. Col. Chantell M. Higgins, a U.S. Marine, said this condemnation should provide “a greater incentive for the United States to find a place for him to go, and release him.”
Another attorney and specialist in international human rights,, Helen Duffy, who brought his case before this U.N. body, said that he “has a well-founded fear of further violations if sent to Saudi [Arabia, where he was born],and we hope to engage with the United States and other states on alternative sites of relocation.”
Colonel Higgins suggested Qatar might be a suitable location as it “has been generous and successfully taken foreigners detained at Guantanamo.”
President Trump on January 30 issued an executive order regarding the prison at Guantánamo, Cuba entitled the “Presidential Executive Order on Protecting American Through Lawful Detention of Terrorists.” It stated, ion part, ““Detention operations at U.S. Naval Station Guantánamo Bay shall continue to be conducted consistent with all applicable United States and international law, including the Detainee Treatment Act of 2005” and the U.S. “may transport additional detainees to U.S. Naval Station Guantánamo Bay when lawful and necessary to protect the Nation.” [1]
Shortly thereafter in his State of the Union Address the President announced this action with an additionalad-libbed remark: “”in many cases terrorism detainees who are captured in the future will now be sent there.”
However, also after the speech, State and Pentagon officials said there were no plans to send new detainees to Guantanamo, a continuation of the practice for nearly the last 10 years. And John Bellinger, a legal adviser in the Bush White House, said he thought that, given past failures, there would be institutional resistance to refilling the camp. “Isuspect the Departments of Defense, Justice and State would oppose sending new detainees to Guantánamo.”
This action has re-ignited controversy over the U.S. prison at the eastern endof the island of Cuba in addition to those criticisms mentioned in the prior post.[2]
Re-Ignited Controversy
According to Robert M. Chesney, a law professor at the University of Texas, Austin who on the U.S. Justice Department detention policy task force in 2009, “Nothing in the new executive order changes the various legal and policy obstacles that help explain why no one was brought there in 2017.” Those obstacles are the Islamic State, transfers and the military commissions trial system at the prison.
Is the U.S. at war with Islamic State detainees?
The legal basis for detention of al-Qaeda and Taliban fighters in the prison is the Authorization for Use of Military Force (AUMF) Act that was enacted imIslamic mediately after the 9/11 attacks for military action against the perpetrators of those attacks.
But it is at best unclear, and at worst illegitimate, to claim that AUMF covers Islamic State or ISIS fighters. Thus, transferring any of these individuals to Guantánamo runs the risk of a U.S. federal court ruling that such transfers and detentions are illegal.
This legal risk could be eliminated if Congress passed a new law specifically authorizing the use of U.S. military force against ISIS of the Islamic State, but is it safe to assume Congress would do so.
2. Would the U.S. have legal authority to transfer Islamic State detainees from Guantánamo?
Although the new Executive Order says that Guantánamo detainees may be transferred to the U.S. for trial in U.S. federal courts, there are existing federal statues that forbid such transfers.
Again Congress could pass new laws abolishing those restrictions, but is it safe to assume Congress would do so.
3. Are the military commissions at Guantánamo effective ?
Professor Chesney observes that this system “has floundered in practice, with contested cases bogging down in years of pretrial hearings.” Indeed, President Trump himself this last November acknowledged this problem when he explained why he had decided token the New York truck-attack suspect in the civilian criminal justice system instead of transferring him to Guantánamo.
4. Is the operation of the Guantánamo prison too expensive?
According to the most recently available government figures, Guantanamo cost $445 million to run in fiscal year 2015—making its current costs about $11 million per inmate.
By contrast, the average cost per inmate in the federal prison system was $31,620, the federal Bureau of Prisons said in a 2016 filing.
5. Is the Guantánamo prison a tainted symbol that fuels anti-Americanism?
Indeed, the prison is such a symbol and enhances anti-American sentiment throughout the world. This was a major reason for a Washington Post editorial condemning the Trump executive order. Said the Post, the prison has “incited a storm of international criticism, handed a recruitment tool to al-Qaeda.” This cost of the prison, the Post adds,is exacerbated by the “hopelessly bogged down” military commissions at the prison in contrast to the over 600 convictions in terrorism cases in U.S. federal courts since 2001.
Mark Fallon, a former chief investigator of the Defense Department’s Criminal Investigation Task Force, said, even if no more prisoners are sent there, Trump’s announcement itself had already caused damage. “Globally [Guantánamo] symbolizes injustice, oppression and torture. And so when you see the president out there talking about expanding upon it, I’m just afraid that that it puts our troops in greater danger overseas and it jeopardizes our national security.”
The mission of Morocco’s Ministry of Endowments and Islamic Affairs was explicated in a September 2014 speech by its Minister, Ahmed Toufiq, to an Open Briefing by the U.N. Security Council’s Counter-Terrorism Committee.[1] To the right is his photograph.
Two other representatives of the Moroccan government made more general statements at the briefing: H.E. Mr. Nasser Bourita, Secretary-General of the Ministry of Foreign Affairs of the Kingdom of Morocco; and Mr. Yassine Mansouri, Director General of the Directorate General of Studies and Documentation of the Kingdom of Morocco.[2]
This briefing was opened by the Committee’s Chair, Ambassador Raimonda Murmokaitë, the Permanent Representative of Lithuania to the U.N., who stated that the theme of this open briefing– countering incitement to commit terrorist acts motivated by extremism and intolerance–was prompted by the Committee’s 2013 visit to Morocco and identifying its national strategy to promote dialogue among civilizations as a good practice to be shared among other States. The Chair noted, “Whether in developing or developed States, religious leaders can play a pivotal role in creating an environment of peaceful coexistence. By promoting intra-religious and interreligious reflection and dialogue, governments can help build trust within societies and within public institutions.”
Minister Toufiq started with the assertion that many Islamic terrorist groups seek to take advantage of the following religious beliefs of most observant Muslims: (1) “religion gives meaning to life;” (2) “some events that have taken place in recent history are ambiguous and tend to disturb the conscience that believes in the ideal values of religion;” (3) “justice at all levels is a central value in religion;” and (4) “religion encompasses all the bases of life and . . . regulates [life] for both individuals and community.”
At the same time, he said, observant Muslims can be vulnerable to some Islamic terrorists’ messages due to (a) “a belief that “political legitimacy [is based upon a] commitment to the fundamentals of religion;” (2) Islamic terrorists’ “interpretation of [Islamic religious] texts in the absence of a respectable qualified [Islamic] religious authority;” and (3) the “absence of or shortcomings in [Islamic] religious leadership and supervision or religious services.”
In these historical circumstances, Morocco’s King Mohammed VI as the country’s Commander of the Faithful has pursued policies to prevent terrorism: adopting reforms and actions in accordance with religious fundamentals (defending religion, protecting life, guarding against harmful ideologies, preserving property and defending honor and dignity); and implementing reforms to enhance security, justice and living conditions and thereby consolidate solidarity and combat social marginalization and exclusion. These measures include the following:
Adherence to the Ash’ari doctrine that does not excommunicate people or impose death sentences for transgressing Devine Decrees;[4]
Adherence to the Maliki school of jurisprudence that encompasses a “rich variety of methods to derive rulings from their sources;” that has “flexibility in integrating local cultural practices within the sphere of Islamic Law;” that recognizes the “importance [of] . . . public interest [including] . . . a fatwa (ruling) . . . that the laws that are promulgated in Morocco all have religious legitimacy.”[5]
“Preservation of the spiritual dimension of Islam known for its mysticism (Sufism). . . [that calls] the soul to account as a means to reach ethical perfection . . . . [that raises] the awareness of the sanctity of the Other, [that] curbs unhealthy enthusiasm for racial and tribal belonging and [that] sets up institutions that provide assistance, protection, education and development.”[6]
The Commander of the Faithful also has established the High Council for Religious Affairs as a modernization of Morocco’s long-standing Order of religious scholars to “implement the fundamentals of religion, especially in mosques, the intellectual enhancement of the caretakers of religion and of the general public, which would definitely curb negative phenomena such as terrorism.” They do so “in conformity with the great principle known in Islam as ‘enjoining good and forbidding evil.’”
The High Council, therefore, takes “charge of issuing fatwas pertaining to political life and social activity, while people’s statements on religion remain mere opinions whose free expression is guaranteed so long as [they] do not violate the law.” The Council thereby has “demonstrated through legal proof . . . that there is no cogent proof for terrorism in religion.”
The Commander of the Faithful also has substantially increased the budget allocated to religious services, including “holding in-service training of imams under the supervision of the legal scholars; training young imams from among university graduates; [and] training spiritual guides from among female university graduates . . . to provide guidance to women and men in mosques, . . . schools, hospitals and prisons.”[7]
Conclusion
The above comments about Islam in Morocco were placed in broader context by the following statement in the remarkable website “Morocco on the Move” maintained by the Moroccan American Center, a group of three U.S. NGOs:
“Morocco has a long history of religious diversity and tolerance. Freedom of worship is guaranteed by Morocco’s Constitution, and in contrast to other parts of North Africa or even Europe, Morocco is internationally recognized for peaceful coexistence among the country’s Muslims, Jews, and Christians.”
“Morocco protected its Jewish citizens from anti-Semitic laws during World War II, and in 2009, King Mohammed [VI] became the first Arab leader to denounce the Holocaust, calling it ‘one of the most tragic chapters of modern history.’ Morocco has a vibrant Jewish community, with thriving synagogues and schools. Members of the Jewish community have played and continue to play key roles in Moroccan political life, such as serving as a senior royal advisor, an ambassador-at-large, and parliamentary candidates.”
Although, as noted in a prior post, the U.N. Human Rights Committee has pointed out weaknesses in Morocco’s freedom of religion, as a non-Moroccan and a non-Muslim, I am impressed by Morocco’s intelligent analysis of the threat posed by terrorists, especially from ISIS and Al Qaeda, Morocco’s crafting of responses to emphasize the true peacefulness of Islam and the leadership of King Mohammed VI. I also especially solicit corrections and elaborations of the above account.
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[1] Morocco’s involvement with the U.N. Security Council’s Counter-Terrorism Committee and other multilateral and bilateral efforts to combat terrorism was discussed in a prior post. Another such multilateral effort was its July 2015 hosting of the inaugural conference of the United Nations Counter-Terrorism Centre (UNCCT) – Global Counterterrorism Forum (GCTF) Border Security Initiative (BSI). (U.N. Counter-Terrorism Centre, Inaugural Conference of the United Nations Counter-Terrorism Centre-Global Counterterrorism Forum Border Security Initiative (July 2015).
[4] According to Wikipedia, Ash’ari theology is an early theological and orthodox school of Sunni Islam that holds that interpreting the Quran and the Hadith should keep developing with the aid of older interpretations. While it depends on rationalism, it also holds that the unique nature and attributes of Allah cannot be fully understood by human reasoning and the senses.
[5] According to Wikipedia, Maliki is one of four major schools of religious law within Sunni Islam. Its sources for Islamic law (Sharia) are hierarchically prioritized as follows: Quran and then trustworthy Hadiths (sayings, customs and actions of Muhammad); if these sources were ambiguous on an issue, then `Amal (customs and practices of the people of Medina), followed by consensus of the Sahabah (the companions of Muhammad), then individual’s opinion from the Sahabah, Qiyas (analogy), Istislah (interest and welfare of Islam and Muslims), and finally Urf (custom of people throughout the Muslim world if it did not contradict the hierarchically higher sources of Sharia).
[6] According to Wikipedia, Sufism believes that it is possible to draw closer to God and to more fully embrace the divine presence in this life. The chief aim of all Sufis is to seek the pleasing of God by working to restore within themselves the primordial state of human nature (fitra) as described in the Quran. In this state nothing one does defies Allah, and all is undertaken with the single motivation of love (ishq).
[7] In May 2014, King Mohammed VI launched the Mohammed VI Institute for the Training of Imams, Morchidines, and Morchidates in Rabat, which will welcome students from Morocco, Africa, and the Middle East to promote religious moderation and tolerance in the region.
Last month my wife and I went on a wonderful two-week tour of Morocco with Overseas Adventure Travel. Here is the OAT map for the tour:
We were impressed by the country’s fascinating history and people, its beautiful architecture, cities and rugged Atlas Mountains, the immensity of the rolling Sahara Desert along its southern border and its current construction boom.
While there we also learned of Morocco’s recent re-establishment of its diplomatic relations with Cuba, a country about which I have written a lot, and of Morocco’s membership in the African Union, both related to Morocco’s lingering conflict over the Western Sahara, which was the subject of a recent U.N. Security Council resolution, all of which were discussed in recent posts.[1]
Also fascinating was the country’s religious profile. Its population of 33.7 million is 99% Sunni Muslim with 1% Shia Muslims, Christians, Jews and Bahias. In every town the mosques’ minarets were the instantaneously recognizable tallest structures.[2]
Our OAT tour guide told us that the current king, Mohammad VI, has been leading efforts to ensure that Muslims in Morocco are not encouraged to join extremists groups like ISIS or Al Qaeda. All imams have to complete an education course at the capitol at Rabat that is organized and administered by the government’s ministry of religious affairs (The Ministry of Endowments and Islamic Affairs of the Kingdom of Morocco) and that excludes the extremist ideologies promoted by ISIS and Al Qaeda.
We also were told that neither the government nor the Muslim leaders discriminate against Christians or Jews, and we visited a synagogue in Fez. On the other hand, we were told, the Christians and Jews are forbidden from preaching or proselytizing or evangelizing in public.
Previously I had learned that the five “pillars” of Islam are (1) shahada, declaring as a matter of faith and trust that there is only one God (Allah) and that Mohammad is God’s messenger; (2) salat, saying the Islamic prayer five times a day; (3) zakat, giving to the poor and needy; (4) slym, fasting during the month of Ramadan; and (5) haji, making a pilgrimage to the holy city of Mecca at least once in a lifetime.
Although in Morocco I only experienced hearing the call to prayer over a minaret’s loudspeaker, I came to see these pillars of faith as similar to various practices of Christian spirituality, as ways of reinforcing a believer’s connections with God (Allah), and as ways that help believers live in accordance with the will of God (Allah). These pillars and practices, in my opinion, also rest on the belief that no one is perfect, that all find it too easy to stray from the path of faithfulness and that all need reminders of God or Allah’s way.
I felt fortunate that my Minneapolis church (Westminster Presbyterian) has warm relations with a local mosque and that we have hosted at least two worship services including its leaders. [3]
After returning to the U.S., I conducted research and discovered more about the previously mentioned government ministry; Morocco’s positive relations with international anti-terrorism groups; the important Declaration of Marrakesh promoting respect for religious minorities in Muslim countries; the most current U.S. State Department’s assessment of Morocco’s religious freedom; and the nature of current U.S.-Morocco relations. These topics will be explored in subsequent posts.
End Designation of Cuba as a “State Sponsor of Terrorism”
By a vote of 481 to 63, the General Assembly adopted resolution 11-03: “Petition the President of the United States and the U.S. Department of State to remove Cuba from the list of state sponsors of terrorism as soon as possible.” [1] The stated rationale for the resolution included the following:
“[T]here is no evidence that Cuba has provided [logistical and financial or political support to groups that carry out terrorist attacks on civilians] in recent decades or is currently providing it.”
“To the contrary, Cuba has made international commitments to combat terrorism, has ratified all twelve international counterterrorism conventions, and has offered to sign a bilateral agreement with the United States on counterterrorism.”
“In an immediate response to the September 11, 2001, attacks on New York City and Washington, D.C., by Islamist militants belonging to Al Qaeda, Cuba expressed solidarity with the U.S, condemning the attacks and offering Cuban airports for the emergency diversion of airplanes from U.S. airports.”
“Cuba is a sponsor of the peace talks between the Revolutionary Armed Forces of Colombia—People’s Army (Fuerzas Armadas Revolucionarias de Colombia—Ejército del Pueblo or FARC) guerrillas and the Columbian government and is playing a constructive mediating in these talks in an effort to bring an end to one of the regions’ longest-standing conflicts and has been lauded by the Columbian government for its assistance.”
“Cuba collaborates with the U.S. in counter-drug traffic efforts, interdicting narcotic shipments in the Caribbean and has been publicly thanked by the United States government for this cooperation.”
“Under these circumstances, keeping Cuba on the list of state sponsors of terrorism weakens the credibility of the entire list. . . . Removing Cuba from the list would send a positive signal to all Latin American governments and would enhance the image of the U.S. in this hemisphere and around the world.”
End Restrictions on U.S. Citizens Traveling to Cuba
By a hand vote the General Assembly approved resolution 11-05: “Petition the President of the United States, the U.S. Department of State, and the U.S. Treasury Department’s Office of Foreign Assets Control to remove all of the restrictions on travel by U.S. citizens to Cuba, which it is legally possible for them to do, and to openly and vigorously advocate to Congress the repeal of all laws restricting the constitutional right of U.S. citizens to travel to Cuba.” The resolution also stated: “Petition the majority and minority leaders of the U.S. Senate and the U.S. House of Representatives to work to repeal all of the laws restricting travel to that nation.”
The rationale for this resolution included the following: “[M]illions of U. S. citizens are unable to visit Cuba because of restrictions still in place that limit travel to that nation. Speaking to the Organization of American States in 2013, U. S. Secretary of State, John Kerry, stated that ‘our people are actually our best ambassadors.’ . . . Increased travel by U. S. citizens will help support thousands of . . . [new] Cuban entrepreneurs and will enable them to purchase food and clothing and provide for their other basic needs.”
Consultation of U.S. and Cuban Presbyterian Churches
The General Assembly also considered Resolution 11-06 calling for developing a process for consultation between the U.S. and Cuban Presbyterian churches. By a hand vote, it was referred back to the appropriate church committee to find the necessary funding for such a process in light of the U.S. church’s “commitment to deepening our relationship [with Cuba] by careful analysis of the ongoing complex situation in Cuba.”
Conclusion
The biennial General Assembly is the national governing body of the Presbyterian church (U.S.A.) that brings together commissioners and advisory delegates from all 172 presbyteries in the U.S., as well as other delegates and observers from around the world.
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[1] This blog repeatedly has called for ending the designation of Cuba as a “State Sponsor of Terrorism.” Here is the latest such post.
Since January of this year Mali in western Africa has been roiled by violent unrest. Last year’s downfall of Colonel Murammar Quaddafi in neighboring Libya has sent a large quantity of Libyan weapons into Mali, bolstering a longstanding rebel movement by the nomadic Tuareg in the country’s vast northern desert and delivering many defeats to Malian forces.
In March of this year the Tuareg rebels made some of their most significant gains yet, seizing much of northern Mali, including the historic city of Timbuktu. The rebels’ Islamist faction, Ansar Dine (defenders of the faith), preaches a strict form of Islam that advocates a total ban on alcohol, the flogging of adulterers and the imposition of Shariah or Islamic law, on a part of Mali that has traditionally practiced religious tolerance. This Summer Ansar Dine embarked on a campaign of destroying Islamic shrines that are seen by them as Timbuktu’s eminence as a center of broad-minded Islamic teaching for centuries.
Timbuktu mosqueGrand Mosque, Djenne, Mali
In April, the rebels declared the independence of the new state of Azawad. This has caused fear that Islamic militants and separatists could turn the remote and poor reaches of northern Mali into a haven for the regional affiliate of Al Qaeda.
Now thousands of Malians are fleeing this turmoil to the west to Mauritania. Already a refugee camp of 92,000 is growing near the border.
On July 18th the Government of Mali led by the Minister of Justice hand delivered a letter in The Hague to the Prosecutor of the International Criminal Court. The letter states that the Government of Mali, as a State Party to the ICC, refers “the situation in Mali since January 2012” to the Prosecutor’s Office and requests an investigation to determine whether one or more persons should be charged for crimes within the Court’s jurisdiction (genocide, crimes against humanity and war crimes).
The Mali letter alleged “grave and large-scale violations of human rights and of international humanitarian law, committed notably in the north of the country.” It further stated there were “summary executions of soldiers, rape of women and young girls, massacres of civilians and the use of child soldiers and pillage” as well as destruction of hospitals, courts and schools and attacks on churches, tombs and mosques.
The Government of Mali submited that the Malian courts are unable to prosecute or try the perpetrators. The Malian delegation also provided documentation in support of the referral.
The Prosecutor’s Office has been following the situation in Mali very closely since violence erupted there this January. On April 24th, as instances of killings, abductions, rapes and conscription of children were reported by several sources, the Prosecutor reminded all actors of ICC jurisdiction over Rome Statute crimes committed on the territory of Mali or by Malian nationals. On July 1st, the Prosecutor stressed that the deliberate destruction of the shrines of Muslim saints in the city of Timbuktu may constitute a war crime under Article 8 of the Rome Statute.
The Prosecutor, upon receipt of the letter from the Government, announced that the Office
Immediately would proceed with a preliminary examination of the situation in order to assess whether the Rome Statute criteria stipulated under Article 53.1 for opening an investigation are fulfilled.
