Headlines, Human Rights, Middle East & North Africa, North America

RIGHTS: Court Won’t Rule on Deaths at Guantanamo

William Fisher

NEW YORK, Feb 18 2010 (IPS) - A federal district court has thrown out the case of two men who died in U.S. custody at Guantanamo Bay in 2006 and who are seeking to hold U.S. government officials responsible for the men’s torture, arbitrary detention and ultimate deaths.

The families of the dead men claimed that it was a violation of due process and cruel treatment to detain them for four years without charge while subjecting them to inhumane and degrading conditions of confinement and violent acts of torture and abuse.

But, in dismissing the case, the court ruled that the deceased’s claims could not be heard in federal court because the men were held on the basis of an “enemy combatant” finding by a Combatant Status Review Tribunal (CSRT). The CSRTs were later found by the Supreme Court itself to be inadequate.

Following a two-year investigation, the military concluded that the men had committed suicide. But recent firsthand accounts by four soldiers stationed at the base at the time of the deaths have raised serious questions about the cause and circumstances of the deaths, including the possibility that the men died as the result of torture.

The deaths of three men at Guantanamo were the subject of an article in Harper’s Magazine by Scott Horton, an attorney who has written extensively on U.S. detention policy and practice.

Horton wrote, “The official story of the prisoners’ deaths was full of unacknowledged contradictions, and the centerpiece of the report – a reconstruction of the events – was simply unbelievable.”

He went on to explain that, “According to Naval Criminal Investigative Service (NCIS) documents, each prisoner had fashioned a noose from torn sheets and T-shirts and tied it to the top of his cell’s eight-foot-high steel-mesh wall. Each prisoner was able somehow to bind his own hands, and, in at least one case, his own feet, then stuff more rags deep down into his own throat.”

“We are then asked to believe that each prisoner, even as he was choking on those rags, climbed up on his washbasin, slipped his head through the noose, tightened it, and leapt from the washbasin to hang until he asphyxiated. The NCIS report also proposes that the three prisoners, who were held in non-adjoining cells, carried out each of these actions almost simultaneously,” Horton wrote.

The district court held that the families’ claims were excluded by a jurisdiction-stripping provision of the 2006 Military Commissions Act that bars any challenge by a Guantánamo detainee to their treatment, conditions, or any other aspect of their detention, while failing to address the plaintiffs’ arguments about the unconstitutionality of the provision itself.

The court also dismissed the assertions of the dead men under the Alien Tort Claims Act, based on a holding by the D.C. Circuit Court in another detainee case that found that even torture or seriously criminal conduct can fall within the proper “scope of employment” of a government official.

The court also did not consider the plaintiffs’ claims under the Federal Tort Claims Act, including for emotional distress by the families, by holding that the U.S. military base at Guantánamo is still a “foreign country” for the purposes of the Act.

George Brent Mickum IV, a Washington-based attorney who is currently handling a number of Guantanamo cases, told IPS, “There have been 100 deaths of detainees since 2006. Thirty-six of these have been declared homicides. Only one case has ever been prosecuted. The probable reason: The CIA is responsible for these deaths.”

And Pardiss Kebriaei, staff attorney at the Centre for Constitutional Rights (CCR), a legal advocacy organisation that has defended many Guantanamo Bay inmates, said, “These men were tortured and detained for four years on the basis of an arbitrary designation of ‘enemy combatant’ and died in the custody of the United States military. They and their families should have the right to have their claims heard at the very least.”

“The court’s decision is all the more troubling in light of recent information that seriously undermines the official account of how these men died, and creates an even greater urgency for transparency and accountability,” she said.

CCR is considering whether it will appeal the verdict.

In January 2010, Scott Horton reported in Harper’s Magazine the accounts of four soldiers assigned to guard the camp where the deceased were detained at the time of their deaths.

He wrote, “The soldiers’ eye-witness accounts, including that of a ranking Army officer who was on senior guard duty the night of the deaths, strongly suggest that the deceased were taken to a secret ‘black site’ at Guantánamo on the night of their deaths and died at that site or from events that occurred there.”

Horton said the “undisclosed facility was thought to have been used by the CIA or the Joint Special Operations Command of the Defence Department to hold and interrogate detainees at Guantánamo. The soldiers further describe a high-level cover-up initiated by the authorities within hours of the men’s deaths, and say they were ordered by their superiors not to speak out.”

Additional reports by the Seton Hall University School of Law analysing the military’s investigation files reveal major unanswered questions and information gaps in the official account of the deaths, including failures to review relevant available information and interview material witnesses.

Seton Hall law professor and director of the Centre for Policy and Research, Mark P. Denbeaux, said, “Amazingly, some of DoD’s statements purporting to defend the NCIS investigation actually impeach it; others are irrelevant or misdirected.”

Denbeaux added, “The inflated number of statements supposedly supporting the NCIS report are not as important as the statements omitted from the NCIS report.”

“The Centre for Policy and Research Report shows that each of the cell block guards on duty that night gave two statements, and the first statement for each is missing. The only statements from the guards in the NCIS report were made only after those guards had been threatened with prosecution because of the contents of their previous – and now missing – statements,” he said.

Professor Denbeaux continued, “Not only are the Alpha Block Guards first statements missing, but the Centre for Policy & Research discovered that all of the contemporaneous statements from every person on duty that night are missing. Everyone on duty that night, in addition the Alpha Block guards, was ordered to write sworn statements as soon as the detainees were declared dead. And every one of those statements is missing.”

CCR represents the families of Yasser Al-Zahrani of Saudi Arabia and Salah Al-Salami of Yemen, two men who were reportedly found dead along with a third detainee, Mani Al-Utaybi of Saudi Arabia, in their cells at Guantanamo on June 10, 2006.

At the time of their deaths, Al-Zahrani and Al-Salami had been detained incommunicado for more than four years without charge.

In letters found following their deaths, the men described their conditions and abuse, including being beaten by teams of military police known as the “Extreme Reaction Force,” deprived of sleep for up to 30 days at a time, subjected to desecration of the Qur’an and forced shaving, and denied necessary medical care.

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