Archive for October, 2010

First Guantánamo Habeas Appeal to US Supreme Court

Last week, two years and three months after the US Supreme Court granted the prisoners held at Guantánamo constitutionally guaranteed habeas corpus rights in Boumediene v. Bush, Fawzi al-Odah, a Kuwaiti prisoner held for nearly nine years, became the first prisoner to appeal to the Supreme Court “to protest federal court interpretations of detainees’ right to contest their detention,” as AFP described it.

Over the last two years, the prisoners have won 38 out of the 55 cases in which the District Court judges in Washington D.C. have made a ruling, but al-Odah is one of the 17 whose appeals have been denied. As I reported when he lost his petition in August 2009:

[T]he government secured another shallow victory when Judge Colleen Kollar-Kotelly denied the habeas petition of Fawzi al-Odah, a Kuwaiti prisoner, agreeing with the government that it was “more likely than not” that he “became part of Taliban and al-Qaeda forces in Afghanistan.” Judge Kollar-Kotelly’s ruling was based on a dubious assemblage of information that relied more on inconsistencies in al-Odah’s account of his activities than it did on anything resembling concrete evidence, as she herself admitted, when she wrote that there were “significant reasons why the Government’s proffered evidence may not be accurate or authentic.”

Al-Odah has always claimed that he took a break from work and traveled to Afghanistan in August 2001 to teach the Koran and provide humanitarian aid (which he had done previously in other countries), and has also admitted that he established contact with the Taliban, as they were the government at the time, and spent one day at a Taliban-controlled training camp. He has also stated that, after the US-led invasion, he was sent by a Taliban representative to a safer location outside Kabul, and, from there, traveled to Jalalabad, where he stayed with another family, who gave him an AK-47 assault rifle to protect himself. He then joined other people crossing the mountains to Pakistan, where he handed himself in to the border guards, and was subsequently handed over — or sold — to US forces.

While Judge Kollar-Kotelly was undoubtedly justified in finding numerous holes in al-Odah’s account of his activities, including asking why he did not flee Afghanistan before traveling to Jalalabad, and why he allowed himself to travel with other armed men through the Tora Bora mountains, the result of her ruling, as I also explained at the time, was that:

[N]early eight years after the 9/11 attacks [now over nine years], the United States is still asserting that it has the right to hold a young man who spent just one day at a training camp, who did not flee Afghanistan after the 9/11 attacks (perhaps because he feared reprisals if he was found escaping), who traveled with other men to Kabul, and then to Logar and then to Tora Bora and his eventual capture, with no evidence that he ever used the weapon he was given, and no evidence that his training involved anything more than firing a few rounds from an AK-47 in a practice session.

Al-Odah’s appeal to the Supreme Court follows the dead end he reached in the lower courts, when, on June 30, the D.C. Circuit Court dismissed his appeal, endorsing Judge Kollar-Kotelly’s ruling, and refusing to acknowledge that there was any weight to al-Odah’s complaints regarding the “preponderance of evidence” standard for continued detention, and the use of hearsay evidence.

Although the burden of proof is on the government in the habeas cases, the “preponderance of evidence” standard is considerably lower than in criminal cases, for example, where a case must be established beyond reasonable doubt. However, the Circuit Court dismissed al-Odah’s complaint “under binding precedent in this circuit,” and also dismissed his complaint about the use of hearsay evidence, pointing out that the use of hearsay evidence had been approved by the Supreme Court in Hamdi v. Rumsfeld, the 2004 case that approved the detention of prisoners under the Authorization for Use of Military Force, the legislation passed by Congress the week after the 9/11 attacks, which authorized (and still authorizes) the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001” (or those who harbored them).

In Hamdi, the Supreme Court declared that “[h]earsay … may need to be accepted as the most reliable available evidence from the Government” to justify the prisoners’ detention, and the D.C. Circuit Court also noted that its use had been endorsed in previous habeas appeals considered by the Circuit Court — specifically, the cases of Adham Ali Awad and Sufyian Barhoumi, discussed here. It should also be noted that the use of hearsay has been accepted by the District Court judges ruling on the prisoners’ habeas petitions, although their approach has generally involved an attempt to establish that hearsay evidence corresponds with other evidence submitted by the government.

In his petition to the Supreme Court, al-Odah argues that the courts have “applied a burden of proof lower than any ever approved by this Court in a case involving prolonged imprisonment, allowing the government to justify indefinite detention by a mere preponderance of the evidence, rather than by clear and convincing evidence.” He also argues that “both the District Court and the Court of Appeals have … allowed the indiscriminate admission of hearsay, denying the detainees any meaningful opportunity to test the reliability of statements made against them.”

These are extremely valid points. By raising the question of whether a low evidentiary standard is appropriate for cases involving indefinite detention, al-Odah echoes what Tom Wilner, who represented the Kuwaiti prisoners in the early days of the habeas legislation, told me after the other remaining Kuwaiti, Fayiz al-Kandari, lost his habeas petition two weeks ago. Al-Kandari, he said (and, by extension, Fawzi al-Odah), “has not been convicted of any wrongdoing, yet he has been imprisoned for more than eight years. The low standard for habeas might be an appropriate standard for detaining someone initially, but it is hardly an appropriate standard for holding people for years without end.”

On hearsay, it will be difficult for al-Odah to argue that he District Court has allowed its “indiscriminate use,” as several judges have, very forcefully, refused to accept hearsay evidence as valid — in, to cite just a few examples, the cases of six Algerians kidnapped in Bosnia in January 2002, the case of Mohammed El-Gharani, a former child prisoner, the case of Alla Ali Bin Ali Ahmed, a Yemeni seized in a university guest house in Pakistan, and the cases of Farhi Saeed Bin Mohammed, an Algerian, and Uthman Abdul Rahim Mohammed Uthman, a Yemeni, whose cases were largely made up of hearsay evidence extracted from torture victims.

However, to provide a counter-weight, it remains apparent that the case against Fayiz al-Kandari consists almost entirely of unreliable hearsay, and Fawzi al-Odah’s case is also extremely weak on anything resembling actual evidence, rather than holes in his story into which suppositions were inserted.

What impresses me most about al-Odah’s complaint about the use of hearsay evidence is his assertion that it “den[ies] the detainees any meaningful opportunity to test the reliability of statements made against them,” as this is a vivid reminder of the failings of the Bush administration’s military review boards — the Combatant Status Review Tribunals — which were established in 2004 to review the prisoners’ cases to determine if, on capture, they had been correctly designated as “enemy combatants,” who could be held without charge or trial.

As was revealed in 2007 by Lt. Col. Stephen Abraham, a veteran of US intelligence who worked on the tribunals, the entire system was rigged, and geared towards rubber-stamping the detainees’ prior designation as “enemy combatants.” because the supposed evidence frequently consisted of intelligence “of a generalized nature — often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status.” In particular, however, I was reminded of Fawzi al-Odah’s complaint through recalling numerous examples of the use of hearsay evidence that prevented the prisoners from having “any meaningful opportunity to test the reliability of statements made against them,” and it struck me that on this point, al-Odah has made a powerful claim that little has actually changed in the last six years.

This, for example, is an exchange that took place in the CSRT of Mustafa Ait Idr, one of the six men kidnapped in Bosnia in January 2002, who was finally released in December 2008 after winning his habeas petition:

Recorder: While living in Bosnia, the detainee associated with a known al-Qaeda operative.
Detainee: Give me his name.
President: I do not know.
Detainee: How can I respond to this?
President: Did you know of anybody who was a member of al-Qaeda?
Detainee: No, no. These are accusations that I can’t even answer … You tell me I am from al-Qaeda, but I am not al-Qaeda. I don’t have any proof except to ask you to catch Bin Laden and ask him if I am part of al-Qaeda … What should be done is you should give me evidence regarding these accusations because I am not able to give you any evidence. I can just tell you no, and that is it.

Beyond these complaints, I can only reiterate my belief that the fundamental problem with the habeas litigation is the government’s reliance on the Authorization for Use of Military Force as its justification for holding prisoners neither as prisoners of war or as criminal suspects, but as a unique category of human being that is neither soldier nor terrorist, but something much more amorphous, with less rights than either.

This is the baleful legacy of the Bush administration, as maintained by President Obama, and it has infected the otherwise successful habeas litigation, largely by failing to distinguish between al-Qaeda (a terrorist organization) and the Taliban (the government of Afghanistan at the time of the US-led invasion in October 2001). The result of this confusion is that the majority of the men who have lost their habeas petitions (and whose detention is being robustly upheld by the Circuit Court) were, at best, minor players in a military conflict that had nothing to do with al-Qaeda’s international terrorist operations.

Fawzi al-Odah is right to ask the Supreme Court to consider whether the methods used to determine the quality of the evidence against him are substantial enough to prevent the government from continuing to hold men indefinitely at Guantánamo without any meaningful ability to challenge the evidence. However, it is surely just as important — if not more so — that prisoners found to have been foot soldiers in Afghanistan on the basis of plausible evidence are being consigned to indefinite detention in Guantánamo (a prison indelibly associated with allegations that it held “the worst of the worst” terrorists), when they should, all along, have been held as prisoners of war according to the Geneva Conventions.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation. Cross-posted on Cageprisoners, The Public Record and Uruknet.

For an overview of all the habeas rulings, including links to all my articles, and to the judges’ unclassified opinions, see: Guantánamo Habeas Results: The Definitive List. For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009), Guantánamo And The Courts (Part Two): Obama’s Shame (August 2009), Guantánamo And The Courts (Part Three): Obama’s Continuing Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (September 2009), 75 Guantánamo Prisoners Cleared For Release; 31 Could Leave Today (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Justice Department Pointlessly Gags Guantánamo Lawyer (November 2009), Judge Orders Release Of Algerian From Guantánamo (But He’s Not Going Anywhere) (November 2009), Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait (December 2009), What Does It Take To Get Out Of Obama’s Guantánamo? (December 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Judge Orders Release From Guantánamo Of Unwilling Yemeni Recruit (December 2009), Serious Problems With Obama’s Plan To Move Guantánamo To Illinois (December 2009), Appeals Court Extends President’s Wartime Powers, Limits Guantánamo Prisoners’ Rights (January 2010), Fear and Paranoia as Guantánamo Marks its Eighth Anniversary (January 2010), Rubbing Salt in Guantánamo’s Wounds: Task Force Announces Indefinite Detention (January 2010), The Black Hole of Guantánamo (March 2010), Guantánamo Uighurs Back in Legal Limbo (March 2010), Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit (April 2010), An Insignificant Yemeni at Guantánamo Loses His Habeas Petition (April 2010), With Regrets, Judge Allows Indefinite Detention at Guantánamo of a Medic (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), Why Judges Can’t Free Torture Victims from Guantánamo (April 2010), How Binyam Mohamed’s Torture Was Revealed in a US Court (May 2010), Guantánamo and Habeas Corpus: Consigning Soldiers to Oblivion (May 2010), Judge Denies Habeas Petition of an Ill and Abused Libyan in Guantánamo (May 2010), Judge Orders Release from Guantánamo of Russian Caught in Abu Zubaydah’s Web (May 2010), No Escape from Guantánamo: Uighurs Lose Again in US Court (June 2010), Does Obama Really Know or Care About Who Is at Guantánamo? (June 2010), Guantánamo and Habeas Corpus: 2 Years, 50 Cases, 36 Victories for the Prisoners (June 2010), Obama Thinks About Releasing Innocent Yemenis from Guantánamo (June 2010), Calling for US Accountability on the International Day in Support of Victims of Torture (June 2010), Judge Orders Release from Guantánamo of Yemeni Seized in Iran, Held in Secret CIA Prisons (July 2010), Innocent Student Finally Released from Guantánamo (July 2010), Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part One) (July 2010), Obama and US Courts Repatriate Algerian from Guantánamo Against His Will; May Be Complicit in Torture (July 2010), In Abu Zubaydah’s Case, Court Relies on Propaganda and Lies (July 2010), Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part Two) (July 2010), Judge Orders Release from Guantánamo of Mentally Ill Yemeni; 2nd Judge Approves Detention of Minor Taliban Recruit (August 2010), Judge Denies Habeas Petition of Afghan Shopkeeper at Guantánamo (September 2010), Nine Years After 9/11, US Court Concedes that International Laws of War Restrict President’s Wartime Powers (September 2010), Fayiz Al-Kandari, A Kuwaiti Aid Worker in Guantánamo, Loses His Habeas Petition (September 2010), Heads You Lose, Tails You Lose: The Betrayal of Mohamedou Ould Slahi (September 2010).

US Court Denies Justice to Dead Men at Guantánamo

On Wednesday, in the District Court in Washington D.C., Judge Ellen Huvelle turned down (PDF) a second attempt by the families of Yasser al-Zahrani, a Saudi, and Salah al-Salami, a Yemeni (two of the three men who died in mysterious circumstances in Guantánamo on June 9, 2006, along with Mani al-Utaybi, another Saudi) to hold US officials accountable for the circumstances in which their family members were held and in which they died.

Judge Huvelle’s ruling came in spite of additional evidence submitted by the families (PDF), drawing on the accounts of four US soldiers who were present in Guantánamo at the time of the deaths, and who have presented a number of compelling reasons why the official story of the men’s triple suicide (as endorsed by a Naval Criminal Investigative Service report in 2008) is a cover-up. That story, written by Scott Horton, was published by Harper’s Magazine in January this year, and I covered it here, and also in an update in June, although it has largely been ignored in the mainstream US media.

The case, Al-Zahrani v. Rumsfeld, was initially filed in January 2009, and primarily involved the families of the dead men seeking to claim damages through the precedent of a case known as Bivens, decided by the Supreme Court in 1971, in which, for the first time, damages claims for constitutional violations committed by federal agents were allowed. The families claimed relief under the Fifth Amendment Due Process Clause (preventing individuals from being deprived of life, liberty, or property without “due process of law”) and the Eighth Amendment (which prohibits the infliction of “cruel and unusual punishments”), as well as submitting a claim, under the Alien Tort Claims Act, “alleging torture, cruel, inhuman and degrading treatment, and violations of the Geneva Conventions.”

Despite the families’ claims, the case was dismissed by the District Court on February 16, 2010, for two particular reasons. One involved a handful of legal precedents — including Rasul v. Myers, a case brought in 2006 by four former Guantánamo detainees from the UK, which was finally turned down by the Supreme Court in December 2009. In the hope of making tortuous legal reasoning comprehensible to the lay reader, these rulings essentially provide precedents for preventing the courts from providing a Bivens remedy and entitle the defendants to “qualified immunity against plaintiffs’ constitutional claims.”

Rather more readily comprehensible, and deeply shocking, is a clause in the Military Commissions Act, passed by Congress in the fall of 2006 and unchanged in the legislation revived under President Obama in 2009, which, as well as creating — or bringing back to life — the much-criticized Military Commission trial system for Guantánamo prisoners that was ruled illegal by the Supreme Court in June 2006, also granted blanket immunity to anyone involved in any activities relating to the detention and treatment of prisoners held in the “War on Terror.”

As Judge Huvelle explained in her opinion:

Specifically, the Court found that the section of the MCA removing from the courts ‘jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement’ of an alien detained and determined to be an enemy combatant by the United States is still valid law.

With these precedents, there was, to be blunt, little hope that Judge Huvelle would grant the complaint filed by the families of Yasser al-Zahrani and Salah al-Salami, even though the families had made an emotional appeal, pointing out:

The fact that Defendants fought to keep secret virtually all information concerning the cause and circumstances of Al-Zahrani and Al-Salami’s deaths from their families, the public and the courts until compelled by FOIA litigation in 2008, and that details of an elaborate, high-level cover-up of likely homicide at a “black site” at Guantánamo are only now emerging nearly four years after the fact, should disturb the Court and caution it against permitting unspecified national security concerns to trump all other factors in this case without question.

Perhaps more to the point, the families of al-Zahrani and al-Salami attempted to persuade Judge Huvelle that “Courts have allowed Bivens claims by detainees in the post-9/11 context to proceed … despite the presence of national security factors,” citing, amongst other cases, Ertel v. Rumsfeld, an ongoing case in Chicago “permitting US citizens detained by the United States in Iraq [former contractors Donald Vance and Nathan Ertel] to bring Bivens claims against Donald Rumsfeld for authorizing their detention and abuse,” and Padilla v. Yoo, another ongoing case (in California), in which Jose Padilla, a US citizen detained as an “enemy combatant” in the United States as part of the “war on terror,” was permitted “to bring a Bivens suit against John Yoo [the lawyer who wrote the Bush administration’s notorious “torture memos”] for authorizing his detention and torture.”

The families also urged the court to “scrutinize bald assertions of national security and secrecy because the government’s account of the risks has in many cases been overblown,” adding, “As an apt case in point, after years of dire warnings to justify the indefinite detention of Guantánamo detainees and forestall court review, the government has by now released the majority of detainees without incident, including approving dozens of detainees for transfer on the eve of habeas review.” For reference, the families drew again on the case of Jose Padilla, citing Padilla v. Hanft, and “observing that the government had ‘steadfastly maintain[ed] that it was imperative in the interest of national security’ to hold Padilla in military custody for three and a half years, yet abruptly changing course on the doorstep of Supreme Court review, seeking to move him into criminal custody, at a ‘substantial cost to the government’s credibility before the courts.’” They also cited the case of Yasser Hamdi, a US citizen held briefly in Guantánamo, who was also held as an “enemy combatant” on the US mainland. In Hamdi’s case, the Bush administration argued that “military necessity required Hamdi’s indefinite detention, yet [the authorities] releas[ed] him to Saudi Arabia seven months later.”

Despite all these arguments, Judge Huvelle was clear in her ruling that, although the allegations were of a “highly disturbing nature,” that alone “cannot be a sufficient basis in law” for the case to be heard. She also explained that the legal precedents established that “matters relating to the conditions of detention in Guantánamo remain the purview of Congress alone — not the courts — due to national security concerns,” as AFP explained.

“The question before the court,” she said, “is not whether homicide ‘exceeds the bounds of permissible official conduct in the treatment of detainees in US custody and demands accountability’ or whether the families of Al-Zahrani and Al-Salami deserve a remedy. Rather, the question is ‘who should decide whether such a remedy should be provided.’”

Following the ruling, Yasser al-Zahrani’s father Talal, spoke for everyone disturbed by the revelations of Joe Hickman and his colleagues, when he stated, “The courts should be investigating my son’s death and holding those responsible accountable. President Obama should be defending human rights and the democratic values the US preaches to the world, rather than going to court to defend the lies and gruesome crimes of the Bush administration.”

Pardiss Kebriaei of the Center for Constitutional Rights, which filed the lawsuit with William Goodman of Goodman & Hurwitz, P.C. and the International Human Rights Law Clinic at the Washington College of Law, added, “The very secrecy of Guantánamo is what allowed the government to torture and illegally imprison innocent men there for years, as we now know from leaked government memos, whistleblowers, and repeated wins in court in detainees’ habeas cases. Yet the court’s decision today allows secrecy to continue to shroud the truth about these deaths, in the face of compelling evidence of a four-year cover-up of murder.”

With this ruling, it is uncertain how the families of Yasser al-Zahrani and Salah al-Salami can continue their quest for truth and justice, as it appears certain that Congress has no desire to investigate the circumstances of the men’s deaths. Sadly, only one major media outlet, AFP, covered the latest ruling, demonstrating how the story of the men’s deaths is viewed as such a toxic issue by most of the mainstream media that it is being ignored. If you care about what appears to be a particular vile cover-up by parts of the US administration, please do all you can to help to keep this story alive.

Below, I publish the sections of the families’ complaint, submitted as part of the “Motion for Reconsideration,” filed on May 3, 2010, that Judge Huvelle turned down last week, which spell out the deeply distressing story exposed by Harper’s Magazine in January this year.

Excerpts from the “Motion of Reconsideration in Light of Newly Discovered Evidence,” Al-Zahrani v. Rumsfeld, Submitted May 3, 2010

In early 2009, as Plaintiffs’ Amended Complaint was pending before this Court, a former soldier by the name of Joe Hickman approached the law school of Seton Hall University, which had produced several reports dealing with the deaths and whose work Hickman had followed. Hickman was a decorated Army officer who had served a distinguished tour of duty at Guantánamo from March 2006 to March 2007 and had been on duty as sergeant of the guard the night Al-Zahrani and Al-Salami died. Hickman said he had decided to come forward with his story because what he had seen “was “haunting me” and he thought that “with a new administration and new ideas I could actually come forward.” While he did not want to speak to the press, he felt that “silence was just wrong.”

On January 18, 2010, Hickman’s account and interviews from three other soldiers under his supervision — Specialist Tony Davila, Army Specialist Christopher Penvose, and Army Specialist David Caroll — were reported by Harper’s Magazine. The article, which serves as the source for this motion and Plaintiffs incorporate in full herein, was the first time Plaintiffs and their counsel became aware of the soldiers’ accounts.

Those accounts are dramatically at odds with the official version of events on June 9-10, 2006. The soldiers describe a cover-up initiated by the authorities within hours of the deaths and say they were affirmatively told not to speak out. Despite having first-hand observations of camp activity that night, they were never approached or interviewed for the NCIS investigation. While the official account of the deaths concluded that Al-Zahrani, Al-Salami and the third deceased, Mani Al-Utaybi, had hanged themselves in their cells, the soldiers’ accounts strongly suggest that the men were transported from their cells to an undisclosed, unofficial “black site” nicknamed “Camp No” that was outside the perimeter of the main prison camp, and died there or from events that transpired there.

Specifically, according to the soldiers’ reported accounts:

• Between approximately 6-8 p.m. on June 9, Hickman observed the van used to transport detainees drive up to the camp where the deceased were held three separate times in short succession. Each time, guards escorted a detainee from the camp to the van and drove away in the direction of Camp No. By the third time he saw the van approach the deceased’s camp, Hickman decided to drive ahead of the vehicle in the direction of Camp No to confirm where it was going. From his vantage point shortly thereafter, he saw the van approach and turn toward Camp No, eliminating any question in his mind about its destination.

• Camp No is an unnamed and officially unacknowledged facility located outside the perimeter of the area enclosing the prison complex at Guantánamo. Guards nicknamed the facility “Camp No” because anyone who asked if it existed would be told, “No, it doesn’t.” Hickman was never briefed about the site, despite frequently being put in charge of security for the entire prison. He reported once hearing a “series of screams” coming from the facility.

• At approximately 11:30 p.m., from his position in a watch tower, Hickman watched the van he had seen transporting the detainees to Camp No return to the camp. This time, the van backed up to the entrance of the medical clinic, as if to unload something.

• At approximately 11:45 p.m., nearly an hour before the NCIS claims the first dead body was discovered in the cells, Army Specialist Christopher Penvose was approached by a senior navy officer who appeared to be extremely agitated and instructed Penvose to go the prison chow hall, identify a specific officer who would be dining there, and relay a specific code word. Penvose did as he was instructed. The petty officer leapt up from her seat and immediately ran out of the chow hall.

• At approximately 12:15 a.m. on June 10, Hickman and Penvose reported that the camp was suddenly flooded with lights and the scene of a frenzy of activity. Hickman headed to the medical clinic, which appeared to be the center of activity, and was told by a medical corpsman there that three dead prisoners had been delivered to the clinic, that they had died because they had rags stuffed down their throats, and that one of them was severely bruised.

• According to Specialist Tony Davila, guards he talked to also said the men had died as the result of having rags stuffed down their throats.

• While the NCIS report’s narrative is that the deceased were found dead in their cells and transported from there to the medical clinic, Penvose, who was on guard duty in a watch tower at the time the deceased would have been transported to the clinic, had an unobstructed view of the walkway between the camp and the clinic, which was the path by which any detainee would be delivered to the clinic. Penvose reported that he saw no detainees being moved from the camp to the clinic.

• Army Specialist David Caroll, who was also on guard duty in another watch tower at the time the NCIS report says the deceased would have been transported to the clinic, also had an unobstructed view of the alleyway that connected the men’s specific cell block to the clinic. He similarly reported that he had seen no detainees transferred from the cell block to the clinic that night.

• By dawn, the news had circulated through the prison that three detainees had committed suicide by swallowing rags.

• On the morning of June 10, Defendant Mike Bumgarner, Commander of the Joint Detention Group at Guantánamo at the time, called a meeting of the guards during which he announced that three detainees had committed suicide during the night by swallowing rags, causing them to choke to death. Defendant Bumgarner said that the media would instead report that the detainees had committed suicide by hanging themselves in their cells. He said that it was important that the guards make no comments or suggestions that in any way undermined the official report, and reminded them that their phone and email communications were being monitored. This account of the meeting was corroborated by various guards in independent interviews conducted by Harper’s.

• On the evening of June 10, Defendant Harry Harris, Commander of the Joint Task Force at Guantánamo and Defendant Bumgarner’s superior at the time, read this statement to reporters: “An alert, professional guard noticed something out of the ordinary in the cell of one of the detainees. … When it was apparent that the detainee had hung himself, the guard force and medical teams reacted quickly to attempt to save the detainee’s life. The detainee was unresponsive and not breathing. [The] guard force began to check on the health and welfare of other detainees. Two detainees in their cells had also hung themselves.”

• In a press interview at the time, Defendant Bumgarner, contrary to his own admonition to the guards, let slip that each deceased detainee “had a ball of cloth in their mouth either for choking or muffling their voices.”

• As soon as Defendant Bumgarner’s interview was published, Defendant Harris called him for a meeting and told him that the article “could get me relieved.” The same day, an investigation was launched to determine whether classified information had been leaked from Guantánamo. Defendant Bumgarner was subsequently suspended.

• Hickman and Davila later learned that Defendant Bumgarner’s home was raided by the FBI over a concern that he had taken classified materials and was planning to send them to the media or use them for writing a book.

• The only apparent discrepancy between Defendant Bumgarner’s interview and the official Pentagon narrative was on one point: that the deaths had involved cloth being stuffed into the detainees’ mouths.

• For several months after Hickman first came forward, he and his attorneys attempted to pursue an investigation through the Department of Justice. Their first meeting was on February 2, 2009, where they related a detailed account of Hickman’s observations and later handed over a list of corroborating witnesses with contact information. The Justice Department ultimately closed its investigation on November 2, 2009, concluding without explanation that “the gist of Sergeant Hickman’s information could not be confirmed” and his conclusions “appeared” to be unsupported.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on Common Dreams, The Smirking Chimp, The Public Record and Uruknet.

For a sequence of articles dealing with the hunger strikes and deaths at Guantánamo, see Suicide at Guantánamo: the story of Abdul Rahman al-Amri (May 2007), Suicide at Guantánamo: a response to the US military’s allegations that Abdul Rahman al-Amri was a member of al-Qaeda (May 2007), Shaker Aamer, A South London Man in Guantánamo: The Children Speak (July 2007), Guantánamo: al-Jazeera cameraman Sami al-Haj fears that he will die (September 2007), The long suffering of Mohammed al-Amin, a Mauritanian teenager sent home from Guantánamo (October 2007), Guantánamo suicides: so who’s telling the truth? (October 2007), Innocents and Foot Soldiers: The Stories of the 14 Saudis Just Released From Guantánamo (Yousef al-Shehri and Murtadha Makram) (November 2007), A letter from Guantánamo (by Al-Jazeera cameraman Sami al-Haj) (January 2008), A Chinese Muslim’s desperate plea from Guantánamo (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), The forgotten anniversary of a Guantánamo suicide (May 2008), Binyam Mohamed embarks on hunger strike to protest Guantánamo charges (June 2008), Second anniversary of triple suicide at Guantánamo (June 2008), Guantánamo Suicide Report: Truth or Travesty? (August 2008), The Pentagon Can’t Count: 22 Juveniles Held at Guantánamo (November 2008), Seven Years Of Guantánamo, And A Call For Justice At Bagram (January 2009), British torture victim Binyam Mohamed to be released from Guantánamo (January 2009), Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), Obama’s “Humane” Guantánamo Is A Bitter Joke (February 2009), Forgotten in Guantánamo: British resident Shaker Aamer (March 2009), Guantánamo’s Long-Term Hunger Striker Should Be Sent Home (March 2009), Guantánamo, Bagram and the “Dark Prison”: Binyam Mohamed talks to Moazzam Begg (March 2009), Forgotten: The Second Anniversary Of A Guantánamo Suicide (May 2009), Yemeni Prisoner Muhammad Salih Dies At Guantánamo (June 2009), Death At Guantánamo Hovers Over Obama’s Middle East Visit (June 2009), Guantánamo’s Hidden History: Shocking Statistics of Starvation (June 2009), Binyam Mohamed: Was Muhammad Salih’s Death In Guantánamo Suicide? (June 2009), Torture In Guantánamo: The Force-feeding Of Hunger Strikers (for ACLU, June 2009), Murders at Guantánamo: Scott Horton of Harper’s Exposes the Truth about the 2006 “Suicides” (January 2010), Torture in Afghanistan and Guantánamo: Shaker Aamer’s Lawyers Speak (February 2010), The Third Anniversary of a Death in Guantánamo (May 2010), Omar Deghayes and Terry Holdbrooks Discuss Guantánamo (Part Three): Deaths at the Prison (June 2010), Suicide or Murder at Guantánamo? (1st anniversary of Mohammed al-Hanashi’s death, June 2010).

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Andy Worthington

Investigative journalist, author, filmmaker and Guantanamo expert
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The Guantánamo Files book cover

The Guantánamo Files

The Battle of the Beanfield book cover

The Battle of the Beanfield

Stonehenge: Celebration & Subversion book cover

Stonehenge: Celebration & Subversion

Outside The Law DVD cover

Outside the Law: Stories from Guantánamo

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