Report on Torture and Treatment at Guantanamo Bay Cuba, Center for Constitutional Rights, 2006
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Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 Phone: (212) 614-6464 Fax: (212) 614-6499 E-Mail: email@example.com REPORT ON TORTURE AND CRUEL, INHUMAN, AND DEGRADING TREATMENT OF PRISONERS AT GUANTÁNAMO BAY, CUBA July 2006 Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 Phone: (212) 614-6464 Fax: (212) 614-6499 E-Mail: firstname.lastname@example.org “You are in a place where there is no law – we are the law.” U.S. military intelligence officers1 REPORT ON TORTURE AND CRUEL, INHUMAN, AND DEGRADING TREATMENT OF PRISONERS AT GUANTÁNAMO BAY, CUBA TABLE OF CONTENTS Preface..........................................................................................................................................................................1 Introduction: The Accounts from Guantánamo ........................................................................................................3 I. A Legal Black Hole..................................................................................................................................................7 A. Enemy Combatants? .......................................................................................................................................7 B. Extreme Interrogation Techniques ..................................................................................................................9 II. Beyond the Law: Guantánamo, the Geneva Conventions, and the War Crimes Act ........................................10 A. Abandoning the Geneva Conventions and International Humanitarian and Human Rights Law.................10 B. The Army Field Manual................................................................................................................................11 C. Avoiding Liability Under the War Crimes Act ..............................................................................................13 III. Torture and Cruel, Inhuman, and Degrading Treatment Reported at Guantánamo ......................................14 A. The Prison Camps ........................................................................................................................................14 B. Types of Torture and Abuse...........................................................................................................................15 1. Psychological Abuse..................................................................................................................................16 2. Physical Abuse ..........................................................................................................................................20 3. Medical Abuse ..........................................................................................................................................22 4. Sexual Provocation, Rape, and Harassment ..............................................................................................24 5. Religious and Cultural Abuse ...................................................................................................................25 6. Pre-Guantánamo Torture and Cruel, Inhuman, and Degrading Treatment...............................................28 IV. The Abuse Continues ..........................................................................................................................................29 V. Avoiding Judicial Scrutiny of Torture and Cruel, Inhuman, and Degrading Treatment...................................30 VI. Has the U.S. Been Committing Torture in Guantánamo? ................................................................................31 VII. United Nations and Committee on the Convention Against Torture Find Torture Committed at Guantánamo ........................................................................................................33 A. United Nations Special Rapporteurs’ Report.................................................................................................33 B. United Nations Committee Against Torture’s Report....................................................................................34 VIII. Conclusion .......................................................................................................................................................34 Appendix - Practices that Rise to the Level of Torture at Guantánamo .................................................................36 Chronology................................................................................................................................................................38 Glossary .....................................................................................................................................................................40 7 | Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba PREFACE The Center for Constitutional Rights (CCR) is a nonprofit legal and educational organization dedicated to protecting and advancing the rights guaranteed by the U.S. Constitution and International Law. Since 1966, CCR has been litigating on behalf of victims of torture and arbitrary detention. Our work began on behalf of civil rights activists, and over the last four decades CCR has played an important role in many popular movements for social justice. Through this work, CCR uses litigation proactively to advance the law in a positive direction, to empower poor communities and communities of color, to guarantee the rights of those with the fewest protections and least access to legal resources, to train the next generation of constitutional and human rights attorneys, and to strengthen the broader movement for constitutional and human rights. Since the indefinite detentions at Guantánamo began, CCR has been at the forefront of the fight for justice on behalf of the prisoners. In the dark days after September 11, CCR was one of the first to call for humane treatment and due process for those the government had branded “the worst of the worst.” In addition, CCR has consistently challenged the U.S. government’s disregard for the rule of law and its attempts to evade judicial or public review of its detention and interrogation practices used to wage the “war on terror,” both at Guantánamo and abroad. In February 2002, CCR filed a historic case against the U.S. government on behalf of the prisoners held at Guantánamo, Rasul v. Bush. In June 2004, the U.S. Supreme Court issued its landmark decision in Rasul upholding the principle that the prisoners held in Guantánamo have the right to challenge the legal and factual basis for their detention in U.S. courts. In the two years since the Court’s decision, the U.S. government has employed every possible tactic to evade judicial review of its detention and interrogation practices in the “war on terror,” including allegations that U.S. personnel subject prisoners to torture and cruel, inhuman, and degrading treatment. During this time, CCR has responded by creating a network of hundreds of attorneys who work collaboratively to represent indi- Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 1 vidual prisoners imprisoned at Guantánamo. This report is a product of our united efforts. This report uniquely recounts the experiences of prisoners inside Guantánamo Bay prison. Other reports, for the most part, rely on the statements of released prisoners who were willing to tell their stories. Appearing in this report are the accounts of torture and cruel, inhuman, and degrading treatment drawn directly from habeas counsels’ unclassified notes. Prisoner statements were made to counsel during in-person interviews conducted at Guantánamo beginning in the fall of 2004. Information provided to counsel through client interviews is presumed secret until cleared. Such information must be provided to a Department of Defense (DoD) privilege team for review. Once cleared, the information carries no restriction. All of the information reported by prisoners in this report has been cleared for publication. Some information has been taken from public sources compiled in a separate report by the law firm of Shearman and Sterling LLP.2 The italicized block passages in this report are excerpts from attorney notes and summaries of prisoner accounts. In some cases, the passages are taken from documents submitted in public court filings. In most cases, the accounts are taken verbatim from attorney summaries; in a few instances, the accounts are paraphrased or combined from more than one document. 2 | To the extent possible, reported incidents have been corroborated by other public, unclassified sources, including government documents. Those corroborated accounts are also cited in this report. Prisoners’ statements of abuse generally correspond with descriptions of abuse recorded in government documents released through a Freedom of Information Act suit brought by the American Civil Liberties Union, CCR, Physicians for Human Rights, and Veterans for Peace.3 Sergeant Eric Saar, a former Guantánamo military intelligence linguist, corroborates specific accounts of abuse in his book Inside the Wire: A Military Intelligence Soldier’s Eyewitness Account of Life at Guantánamo.4 Additional corroboration can also be found in the book For God and Country: Faith and Patriotism Under Fire written by Captain James Yee, a former Muslim chaplain at Guantánamo who was falsely accused of spying for Al Qaeda and later exonerated.5 Finally, given the limitations of access to the base, this report cannot provide a full accounting of the incidents of prisoner abuse at Guantánamo. Rather, by offering examples of the abuses described to attorneys and, in many cases, corroborated by independent government or other documents, this report compels the conclusion that a more detailed investigation must be conducted into the treatment of prisoners at Guantánamo. Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba INTRODUCTION: THE ACCOUNTS FROM GUANTÁNAMO bono attorneys from a wide range of practices have taken days from family and work and spent thousands of dollars to travel to Guantánamo to meet with their clients. Those meetings revealed not only facts suggesting many of the detentions were unlawful, but disturbing information about the conditions under which the prisoners were confined and the treatment to which they were subjected. In early 2002, Americans saw photos of hooded, goggled, and shackled men in bright orange jumpsuits kneeling before a wire mesh fence, their postures a grotesque parody of common Muslim prayer positions. Some of these men had been picked up on or near the battlefields of Afghanistan. Others were “Of the 550 [detainees] turned over to U.S. forces from that we have, I would say places far from any battlefield – most of them, the Bosnia, Zambia, and The Gambia – torn from their families, careers, majority of them, will and communities. They were at either be released or Guantánamo Bay Naval Base, transferred to their own Cuba, in a place called Camp Xcountries . . . Most of Ray.6 The U.S. military has openly acknowledged that many of the men at Guantánamo do not belong there. In October 2004, Brigadier General Martin Lucenti, then-deputy commander of the military task force that runs the detention center at Guantánamo, stated:“[o]f the 550 [detainees] that we have, I would say most of these guys weren’t Currently, about 460 prisoners them, the majority of them, will remain at Guantánamo (often fighting. They were either be released or transferred to referred to by the acronym running. ” their own countries . . . Most of “GTMO”).7 Approximately 200 these guys weren’t fighting. They Brigadier General Martin Lucenti habeas corpus petitions are pendwere running.”13 General Lucenti’s ing in the U.S. District Courts and comments reportedly have been the Court of Appeals for the District of Columbia on echoed by an active duty Guantánamo interrogator, who behalf of nearly all of the prisoners now held at stated that “the U.S. is holding dozens of prisoners at Guantánamo. Those petitions invoke habeas corpus the U.S. Navy Base at Guantánamo who have no meanrights, one of the most fundamental protections afforded ingful connection to al-Qaida or the Taliban and is by our Anglo-Saxon system of government. The writ of denying them access to legal representation. . . . There habeas corpus was first codified in the foundational docare a large number of people at Guantánamo who ument of English law, the Magna Carta, and later preshouldn’t be there.”14 In January 2005, Brigadier served in the U.S. Constitution.8 Habeas corpus protects the right of a person not to be detained by the Executive without a lawful basis.9 The original right is codified in U.S. statutory law, and it has been broadened to afford prisoners the right to challenge their custody as a violation of the laws, Constitution, or treaties of the United States.10 Petitions for habeas corpus for Guantánamo prisoners were filed after the Supreme Court’s 2004 decision in Rasul v. Bush, which held that aliens in military custody at Guantánamo are entitled to test the lawfulness of their detention in the federal courts.11 In November 2004, District Court Judge Colleen Kollar-Kotelly ruled that counsel for the prisoners could meet with their clients at Guantánamo.12 Since then, more than 450 pro Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 3 General Jay Hood, then base comdignity, and potentially, the safety mander at Guantánamo, admitted, of all of us. Congress must act “Sometimes, we just “[s]ometimes, we just didn’t get the now to create an independent didn’t get the right folks.” bipartisan commission that will right folks.”15 These statements, Jay Hood, Commanding General, and other recent findings,16 contraengage in credible, effective factJoint Task Force dict the sweeping pronouncements finding, end the practices of torof high level U.S. officials, includture and cruel, inhuman and ing President Bush and Secretary of Defense Donald degrading treatment, hold U.S. officials accountable for any unlawful conduct, make recommendations to guide Rumsfeld, that Guantánamo prisoners are the “worst of U.S. officials in the future, and move with due speed to the worst.”17 close the prison at Guantánamo. Both present and former prisoners consistently have Mohammed Nechla and five other Bosnians were taken reported they suffered systematic abuse at the hands of into custody by Bosnian authorities in the Fall of 2001 at U.S. military personnel. The government has tried to the demand of the U.S., based on unsubstantiated allegadismiss prisoner accounts of mistreatment by claiming tions by the U.S. embassy that they were part of a group that prisoners are hardened terrorists, trained to allege planning an attack on the Embassy. Mohammed Nechla torture as part of their indoctrination by Al Qaeda, but worked with orphans for the Red Crescent Society of the these claims are belied by the mounting evidence.18 United Arab Emirates in Bihac, Bosnia as a social worker Many in the military have objected to decisions that when he was arrested. resulted in prisoner abuse. Alberto J. Mora, former The Bosnian Supreme Court ordered the six released after a General Counsel of the Navy under President George three-month investigation, which included searches of docuW. Bush, made public a series of strenuous objections he ments, residences, and computers, yielded insufficient eviraised within the Administration concerning its depardence to detain them.21 ture from both domestic and international law with respect to the detention, treatment, and interrogation of On the night of January 18, 2002, Mr. Nechla and the prisoners at Guantánamo.19 Echoing Mora’s concerns, other five Bosnians were taken to the courtyard of the Major General Jack L. Rives, Deputy Judge Advocate Sarajevo jail. Mr. Nechla was given a document confirmGeneral for the Air Force, stated, “[T]he use of the more ing that he was to be released. But he was not set free. extreme interrogation techniques simply is not how the Instead, he was turned over to nine officers/soldiers, includU.S. armed forces have operated in recent history. We ing at least one American soldier, in full riot gear. A hood have taken the legal and moral ‘high-road’ in the conwas placed over his head and his wrists were bound duct of our military operations regardless of how others 20 extremely tightly. The six were taken to an airport, where may operate.” they were handed over to Americans. The Americans CCR calls for an immediate end to the use of any removed Mr. Nechla’s hood, and placed sensory deprivation method or practice in connection with Guantánamo goggles on his eyes, a surgical-type mask on his mouth, and prisoners that constitutes torture. The disturbing headphone-type coverings over his ears. accounts set forth in this report support our call for an After spending hours sitting on the ground in sub-freezing independent commission to determine the full scope of temperatures, Mr. Nechla and the others were forced onto a the mistreatment at Guantánamo that has been relayed plane. The pain from Mr. Nechla’s wrist restraints was by the prisoners to their counsel. There is much at stake excruciating because they were so tight; he was crying and here. The world is watching. Many of our allies, as well screaming, “My hands, my hands!” He began to feel numbas an increasing number of current and former U.S. offiness in his hands and arms. cials, call for Guantánamo to be closed immediately. The facts paint a picture of practices that are not only unlawful and immoral, but are actively eroding our government’s commitment to the rule of law and human 4 | He was placed in a sitting position on the floor of the plane. If he slumped or fell, he was slammed back into the sitting Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba position by soldiers. The flight lasted about six hours. When the plane landed, they were in a place that was extremely cold (-20 C). Mr. Nechla believes it was Turkey or Germany.22 Mr. Nechla heard barking and snarling dogs very close to him, but he could not see because of the goggles. He was terrified that the dogs would bite him or kill him; the soldiers taunted him in the bitter cold. Before boarding a second plane, Mr. Nechla was given a new article of clothing, but he could not see what it looked like. His hands remained in pain, and the numbness in his arms grew. He was given no food. The plane trip lasted many hours. Immediately before the plane landed at Guantánamo, he was given an apple—the only food he received during his nearly two-day journey. After the plane landed, he was dragged to a bus, still wearing the goggles, mask, and headphones. The soldiers dragged him by his biceps, gripping him tightly and painfully. The bus had no seats. Soldiers were screaming at him in English, “Don’t move!” “Don’t talk!” repeatedly. When the bus stopped, Mr. Nechla was pulled down the boarding stairs, again by the upper arms. There were several dogs barking very close to him, and he again feared he would be bitten and attacked. He was dragged to an area of gravel and placed in a painful position, with his legs placed straight out in front of him, shackled, and his wrists still shackled. Soldiers were screaming insults at him and about his family. A soldier punched him around his head and shoulders. The sun pounded down on him and it was unbearably hot. He fainted. A soldier stepped forward, grabbed him, and shoved him back into the painful seated position. This occurred a few times. He was forced to sit in the intense heat for an extended period. He was having difficulty breathing through the mask and believed he was going to suffocate. He cried out for help. A soldier came and pulled the mask out and let it snap against his face. He began to cry.23 He had arrived at Guantánamo. O.K. was 15 years old when he was captured in July 2002.24 Military officials at Bagram treated him roughly, despite his young age and his poor physical condition. He was interrogated repeatedly by military officials, and on many occasions was brought into the interrogation room on a stretcher. On one occasion, interrogators grabbed and pulled him, he fell and cut his left knee. On some occasions, interrogators brought barking dogs into the interrogation room while his head was covered with a bag. On other occasions, interrogators threw cold water on him. They also tied his hands above the door frame and made him dangle painfully for hours at a time. While his wounds were still healing, interrogators made O.K. clean the floors on his hands and knees. They forced him to carry heavy buckets of water, which hurt his left shoulder (where he had been Second from the left: Mohammed Nechla Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 5 shot). When he was able to walk again, interrogators made him pick up trash, then emptied the trash bag and made him pick it up again. During the interrogation, he was not allowed to use the bathroom, and was forced to urinate on himself. Around March of 2003, O.K. was taken out of his cell at Camp Delta at approximately 12:00 – 1:00 a.m., and taken to an interrogation room. An interrogator told O.K. that his brother was at Guantánamo, and that he should “get ready for a miserable life.” O.K. stated that he would answer the interrogator’s questions if they brought his brother to see him. The interrogator became extremely angry, then called in military police and told them to cuff O.K. to the floor. First they cuffed him with his arms in front of his legs. After approximately half an hour they cuffed him with his arms behind his legs. After another half hour they forced him onto his knees, and cuffed his hands behind his legs. Later still, they forced him on his stomach, bent his knees, and cuffed his hands and feet together. At some point, O.K. urinated on the floor and on himself. Military Police poured pine oil on the floor and on O.K., and then, with O.K. lying on his stomach and his hands and feet cuffed together behind him, the Military Police dragged him back and forth through the mixture of urine and pine oil on the floor. Later, O.K. was put back in his cell, without being allowed a shower or change of clothes. He was not given a change of clothes for two days.25 Mustafa Ait Idir asked to speak with an officer after guards refused to turn down fans that were making prisoners cold. He was alone in his cell at about 2 p.m. when guards entered, saying they wanted to search his cell. He sat on the floor as he was instructed, and his hands were secured behind him. The guards then threw him on the floor and continued to pound him and bang his head and body on the floor. The guards then picked him up and banged his head on the foot stirrups of the toilet unit in his cell. Mustafa described the toilet as like a Turkish toilet – with a hole beneath it and a sturdy place to place one’s feet and from which to squat. They banged his head onto the foot holding apparatus. He was taken to solitary confinement after that beating. Officers visited him twice that night to examine the bruises covering much of his upper body.26 Mr. Ait Idir has been in Guantánamo since January 2002; he has not seen his son Muhamed in four years. Suddenly guards grabbed him and picked him up. They began to curse him and to say horrible things to him and about him and his family. The bunk in that cell was on a 3-foot high steel shelf. The guards banged his body and his head into the steel bunk. The bunk and cell appear to be of a single piece or welded construction – much like a tub and wall unit – but made of steel. 6 | Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba I. A LEGAL BLACK HOLE nor any international body uses the term “enemy combatant.” “Enemy combatant” is solely a term coined by Who are these men, and why have they been treated this the U.S. government. The U.S. government’s sleight of way? What are the implications of the U.S. government’s hand redefinition of the term used to describe captured decision to classify them as “enemy combatants?” What war prisoners attempted to place has occurred at Guantánamo in the Guantánamo prisoners outside the absence of public scrutiny, judicial orbit of the laws of war and, more Before a federal judge, review, and government accountabroadly, the rule of law. the U.S. government bility? The American people, and the global community, deserve Over the past four years, the conceded that, under answers to these questions. And the Wolfowitz definition, Administration has modified the answers will only come to light definition of “enemy combatant” a “little old lady in when Congress appoints an indeto suit its objectives; for example, pendent commission to investigate the government told the U.S. Switzerland” could be all accounts of torture and abuse at Supreme Court in the Hamdi case held as an enemy Guantánamo, to put an end to the that an enemy combatant was a combatant if she – practices of torture and cruel, person fighting U.S. forces in unknowingly – donated inhuman and degrading treatment, Afghanistan.28 That narrow definito hold government officials tion would exclude many of the funds to a charity that accountable, to close the detention men at Guantánamo.29 funneled the money to facility at Guantánamo, and to In Rasul v. Bush, the Supreme Al Qaeda. make recommendations to prevent Court rejected the abuses in the future. Administration’s assertion of unreA. Enemy Combatants? viewable power to designate prisoners as so-called “enemy combatants,” although the Executive continues The U.S. government claims that Guantánamo prisoners to resist any judicial oversight of its conduct in are so-called “enemy combatants,” falling outside the Guantánamo. In the wake of that decision, Deputy historical protections provided individuals in U.S. miliSecretary of Defense Paul Wolfowitz issued an order tary custody. A detention and interrogation system based (Wolfowitz Order) in July 2004 expanding the term upon ad hoc Executive rules renders prisoners particularenemy combatant to include: ly vulnerable to abuse in the absence of clear guidance for interrogators and prison guards. This new category of military prisoners, accompanied by the failure to adhere to traditional and long-established military law, increases the risk that some individuals imprisoned under these conditions may be wrongfully accused of engaging in hostilities against the U.S. Since the “war on terrorism” began, the U.S. government has insisted that the Executive has the sole authority to determine “enemy combatant” status. What is an “enemy combatant?” The term “enemy combatant,” taken literally, has the same meaning as “enemy soldier,”27 but has no previously recognized legal significance. It is not a “term of art” in U.S. law. The U.S. has not used the term in any previous armed conflict. No international treaty, including the Geneva Conventions, an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the U.S. or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.30 The Wolfowitz definition is subject to criticism, at a minimum, because it fails to describe what it means to “support” Al Qaeda or be an “associated force.” Before a federal judge, the U.S. government conceded that, under the Wolfowitz definition, a “little old lady in Switzerland” could be held as an enemy combatant if she – unknowingly – donated funds to a charity that funneled the money to Al Qaeda.31 In its efforts to combat terrorism, the U.S. government has claimed the right Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 7 to pick up alleged “enemy combatants” in every corner of the world, on suspicion they are affiliated with a terrorist organization, and then to subject them to indefinite detention without judicial review. This extraordinary exercise of executive power has no precedent in U.S. history. Though the Administration repeatedly asserts Guantánamo prisoners are hardened terrorists, the accounts provided to habeas counsel and the statements of several military officers suggest that many of the prisoners have no connection to terrorism. Rather, there is evidence that many simply were in the wrong place at the wrong time. The ABC News program 20/20 reported, “Afghanistan was showered with U.S. offers of money for turning in any al Qaeda and Taliban ‘murderers.’”32 Twelve Kuwaiti citizens (who also sought review of their detention before the U.S. Supreme Court with Rasul) were serving in humanitarian organizations in Pakistan and Afghanistan when they were picked up by local villagers who sought to recover bounties offered by the United States.33 Sami Al-Laithi, an Egyptian, was also sold for a bounty.34 A recent report analyzed declassified records of certain military panels, the Combatant Status Review Tribunals (CSRT), mandated by the Wolfowitz Order to create a vehicle to confirm the prisoners’ status as enemy combatants. Even though the CSRT procedures lacked most fundamental due process protections, the records of those reviews still provide significant data. The report finds that, in fifty-five percent (55%) of the cases, prisoners were determined not to have committed any hostile act against the U.S. or its coalition allies. Eighty-six percent (86%) were arrested by either Pakistan or the Northern Alliance when the United States was paying large bounties for apprehension of suspected Al Qaeda or Taliban supporters.35 Following the 2002 U.S. invasion of Afghanistan, the practice of “selling” foreign nationals arrested in or near Afghanistan to the U.S. military for thousands of dollars in bounty money was commonplace.36 Psychological Operations (PsyOp) Leaflet No. TF11-RP09-1 Pamphlet distributed by U.S. Forces in Afghanistan Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 8 Senior military officials, like Steve Rodriguez, the Head of Interrogations at Guantánamo, have questioned the intelligence value of the majority of Guantánamo prisoners. In 2004, Rodriguez maintained that “20, 30, 40, maybe even 50 [of the Guantánamo detainees] are providing critical information today.”37 Lt. Col. Anthony Christino stated in 2004 “that there is a continuing intelligence value . . . for [s]omewhere a[round] a few dozen, a few score at the most” of the Guantánamo prisoners.38 At peak, the U.S. imprisoned approximately 660 men at Guantánamo.39 That innocent men may be arbitrarily imprisoned and mistreated at Guantánamo is an especially egregious miscarriage of justice. But even those who may have been involved in armed conflict against the United States or otherwise acted to harm U.S. interests should not be disgraced, tortured, or treated inhumanely. U.S. domestic laws and international treaties to which the U.S. is a signatory absolutely prohibit such treatment. B. Extreme Interrogation Techniques • exposed to prolonged temperature extremes; • beaten; • threatened with transfer to a foreign country, for torture;43 • tortured in foreign countries or at U.S. military bases abroad before transfer to Guantánamo; • sexually harassed and raped or threatened with rape; • deprived of medical treatment for serious conditions, or allowed treatment only on the condition that they “cooperate” with interrogators; and • routinely “short-shackled” (wrists and ankles bound together and to the floor) for hours and even days during interrogations. These aggressive interrogation techniques, when coupled with the stress of indefinite, arbitrary detention, have caused the prisoners tremendous psychological and physical injury. At least one prisoner nearly died during an interrogation.44 The extreme interrogation techniques that led to the Most prisoners live in conditions that are debilitating. abuses at Abu Ghraib were designed and implemented Many have serious, untreated medical problems, often first at Guantánamo and then exported to Iraq.40 The caused by living conditions or physical punishment. government deliberately chose Guantánamo as its prison Some have lost their sanity. Numerous prisoners have site because it believed foreign citizens detained there tried to commit suicide, some multiple times, one in stood beyond the reach of U.S. law, including U.S. October 2005 during a visit by his lawyer.45 international obligations under the Geneva Conventions Prisoners have undertaken several hunger strikes to and other international humanitarian and human rights protest conditions at Guantánamo.46 The longest and law. The U.S. government calculated that, at most serious hunger strike began in August 2005 and Guantánamo, a prisoner would have no remedy to conresulted in the military intranasally force-feeding over test his incarceration in U.S. thirty prisoners.47 When several courts.41 Legal memoranda from hunger strikers reached a life2002 reveal that the White House “There is a continuing threatening stage, the military and the DoD wanted to know intelligence value . . . for began using an “emergency how far they could “legally” go in restraint chair” during force-feed[s]omewhere a[round] a interrogating alleged terrorists.42 48 Guantánamo was the perfect locafew dozen, a few score at ings. tion to test these limits. On June 10, 2006, three prisoners the most” of the Prisoners being interrogated at Guantánamo have been: Guantánamo prisoners. Lt. Col. Anthony Christino • held in solitary confinement for periods exceeding a year; • deprived of sleep for days and weeks and, in at least one case, months; were found dead in their cells. A hunger strike is underway in the prison, as this report goes to press. The accounts collected in this report lead inexorably to only one conclusion: torture and cruel, inhuman, and degrading treatment is being Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 9 The decision to strip practiced routinely at the captured in the “war on terrorism” Guantánamo prisoners of are not protected by the Geneva Guantánamo prison. To ensure that these practices are prohibited, Conventions or any other internathe protections of the the U.S. government must underGeneva Conventions laid tional humanitarian or human take a detailed, independent, and rights law. the foundation for a transparent investigation into all The decision to strip Guantánamo prison beyond the law. interrogation policies and practices prisoners of the protections of the in the war on terror, comprehenGeneva Conventions laid the sively collect and analyze the data foundation for a prison beyond the law. The U.S. govon the incidents and nature of abusive practices, and act ernment intentionally pursued this course of action in to prevent such actions from occurring in the future. order to avoid the specific protections those treaties Finally, it must end the practice of arbitrary, indefinite afford. To understand why, we first have to understand detention at Guantánamo. what the Conventions are and what they do. On one occasion, while in the interrogation room, an MP The four Geneva Conventions are among the most unitrained a rifle directly on Mr. Al Dossari at close range, versal treaties in all of international law.50 They derive despite the fact that Mr. Al Dossari was shackled to the from principles that constrain the conduct of belligerfloor. On another occasion, an interrogator in civilian ents to an armed conflict and make clear the duties that clothing threatened to send Mr. Al Dossari to a prison with those belligerents owe to anyone “outside of combat,” murderers, where he said Mr. Al Dossari would be raped. whether they are civilians or prisoners of war.51 The four At a subsequent interrogation, Mr. Al Dossari was told that Geneva Conventions codify the protection of the cusit was known that he was a low-level al Qaeda soldier and tomary international “laws of war.” The human rights that if he admitted this, he would spend five to ten years in component of this body of law is termed “international prison. If he did not confess, Mr. Al Dossari was told, he humanitarian law.”52 Parties to armed conflicts, includwould spend 50 years or perhaps the rest of his life in jail. ing both state and nonstate actors, have observed the Geneva Conventions and the protections they codify for During another interrogation, a woman Mr. Al Dossari the past fifty years. believes was of Egyptian origin banged Mr. Al Dossari’s head on a The Third Convention, addressThe Third Convention table. Mr. Al Dossari was shackled by ing prisoner of war rights, and a chain around his waist. The chain the Fourth Convention addressexpressly guarantees was pulled so tight that it caused him ing civilian rights, contain POWs charged with to vomit.49 numerous protections for persons crimes fair trial rights. captured during military hostiliII. BEYOND THE LAW: GUANTÁNAMO, THE GENEVA These fair trial guarantees ties. The Third Convention guarCONVENTIONS, AND THE antees that members of the armed are considered so WAR CRIMES ACT forces of a state party to an interessential that “willfully national armed conflict and A. Abandoning the Geneva Conventions and depriving a [POW] of the members of affiliated militias are International Humanitarian rights of a fair and regular entitled to prisoner of war and Human Rights Law (POW) status upon capture. One trial prescribed in this of the central protections providGuantánamo has been a lightning Convention” is deemed a ed by the Third Convention is a rod for international and domestic detainee’s right to be treated as a criticism in large part because of the “grave breach” of the POW unless and until his status U.S. government’s assertion that convention – i.e., a war or innocence can be determined Guantánamo is not only beyond the crime. by a “competent tribunal.”53 The reach of U.S. law, but that prisoners 10 | Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba Third Convention also guarantees other basic dignities and fundamental procedural rights, including rights to (1) humane treatment including protection from violence, intimidation, insults, public curiosity, and coercive interrogation tactics;54 (2) due process if subject to disciplinary or punitive sanctions;55 (3) communication with protective agencies;56 (4) proper medical attention.57 The Third Convention expressly guarantees POWs charged with crimes fair trial rights.58 These fair trial guarantees are considered so essential that “willfully depriving a [POW] of the rights of a fair and regular trial prescribed in this Convention” is deemed a “grave breach” of the convention – i.e., a war crime. The Fourth Convention provides similar, and even more protective, guarantees, including fair trial protections to “protected persons.” “Protected persons” under the Fourth Convention include all those “in the hands of a Party to the conflict” who are not prisoners of war or wounded or sick.59 This includes not only civilian bystanders to the conflict, but even those individuals who may be “definitely suspected of or engaged in activities hostile to the security of the State.”60 Article 17 of the Third Convention illustrates how parties to the Convention intended to ensure a baseline of humane treatment for all persons even during times of international armed conflict. While Article 17 limits the manner and extent of interrogations of prisoners of war,61 it does not prohibit interrogation altogether. Rather, Article 17 forbids the use of “physical or mental torture” and “any other form of coercion” to secure “information of any kind whatever.”62 A country detaining prisoners of war is prohibited from threatening, insulting, or exposing to unpleasant or disadvantageous treatment of any kind “prisoners of war who refuse to answer” questions.63 In addition to restricting the treatment of prisoners during interrogations, the Geneva Conventions obligate the U.S. to provide humane conditions of confinement. The majority of Third Convention provisions (such as Article 17) apply technically only to prisoners of war. The provisions of the Fourth Convention, however, cover all other persons who may be captured during an armed conflict and provide even greater protections. Common Article 3 (CA3) (so-called because it is common to all four Geneva Conventions) establishes a baseline of humane treatment for prisoners, civilians, and the sick and wounded seized during any form of armed conflict involving state or nonstate actors.64 CA3 protects all persons, no matter who they are, to ensure they are treated humanely. It prohibits: • violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; • outrages upon personal dignity, in particular, humiliating and degrading treatment; • the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.65 Finally, CA3 requires that the “wounded and sick shall be collected and cared for...”66 Along with the safeguards embodied in the Geneva Conventions, the Guantánamo prisoners, like other captured prisoners, are the beneficiaries of the protections of all other international human rights treaties to which the United States is a signatory,67 as well as the protections of customary international law. The decision to abandon the Geneva Conventions and other international legal requirements represented an unprecedented break with prior U.S. military policy. In previous armed conflicts, even those involving unconventional enemies, the U.S. military adhered to the Geneva Conventions, even when it had evidence that its adversaries were abusing captured U.S. soldiers.68 The United States did so on the principle that it should lead through moral example as well as military might and that it was putting its own soldiers in jeopardy by doing otherwise. B. The Army Field Manual Since 1949, when the current version of the Conventions was adopted, the U.S. military has conducted its activities in accord with the Conventions. For many years, the Army’s Field Manual 34-52 (FM 34-52) governing interrogations has been consistent with Geneva’s prohibitions on torture and degrading treatment.69 Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 11 The interrogation techniques outlined in the current FM 34-52 are all psychological, not physical, methods that focus on developing an emotional rapport with the prisoner. Permissible techniques include: FM 34-52 then instructs: “If you answer yes to either of these tests, do not engage in the contemplated action.”75 The decision to abandon the Geneva Conventions and designate the prisoners as “enemy combatants” – rather than conducting the legally required Geneva Convention hearings to identify any prisoners of war • Emotional Approach. Divining and release noncombatants – and playing upon the dominant [T]he proposed standards enabled DoD to evade the Field emotions motivating a prisoner. Manual’s stringent standards. The of treatment in the new • Fear-Up Approach. Exploitation rules of engagement in Field Manual would of a prisoner’s preexisting fear. Guantánamo for interrogating May take “harsh” (“usually a alleged enemy combatants are violate the anti-torture dead-end”) or “mild” forms.70 protections advanced by deliberately vague, go beyond the time and battle-tested standards of • Fear-Down Approach. Calming Sen. John McCain the Field Manual, and, as a result, the prisoner and assuring him he contribute not only to confusion will be properly and humanely on the ground but to the sanctioning of abusive methtreated . . . . “When used with a soothing, calm tone ods of prisoner treatment.76 By rejecting the Geneva of voice, this often creates rapport and usually nothing Conventions and other protections, the United States else is needed to get the source to cooperate.”71 sought to exempt itself from any limits on interrogation • Pride and Ego Approach. Goading or flattering. methods for individuals detained in the “war on terrorism.” • Futility. Convincing the source that resistance is futile, • Incentive Approach. Giving and taking comfort items. and that everyone “talks sooner or later.” Most effective when playing on doubts already in source’s mind.72 FM 34-52 prohibits the use of force.73 Indeed, Army interrogation experts “view the use of force as an inferior technique that yields information of questionable quality.”74 FM 34-52 instructs U.S. personnel to consider two tests to determine whether an interrogation technique is permissible: • Given all the surrounding facts and circumstances, would a reasonable person in the place of the person being interrogated believe that his rights, as guaranteed under both international and US law, are being violated or withheld, or will be violated or withheld if he fails to cooperate. • If your contemplated actions were perpetrated by the enemy against US POWs, you would believe such actions violate international or US law. 12 | The U.S. government’s efforts to avoid its Geneva obligations continue. For over a year, DoD has been drafting a new Army Field Manual modifying instructions for prisoner interrogations. DoD recently stated that the new Field Manual would omit a key tenet of the Geneva Convention that explicitly bans “humiliating and degrading treatment.” DoD has acknowledged that the State Department as well as a number of senators and senior generals vehemently oppose the change,77 observing that the proposed standards of treatment in the new Field Manual would violate the anti-torture protections advanced by Sen. John McCain (R-Ariz.) last year and codified in The Detainee Treatment Act of 2005. These concerns have led to delay in publication of the new manual; as of this writing, it has not yet been issued. As this report goes to press, the U.S. government has indicated that it is finalizing revisions to the Field Manual. Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba Mr. Omar Deghayes, a prisoner from Libya, recounts an incident of abuse he witnessed: At the end of 2004, [another prisoner] was in my block, and he refused to give back his paper plate as a minor protest over something. Five [military guards] came in on him and three kneed him in the stomach until they had knocked him to the floor. This ruptured his stomach and he suffered constant and increasing pain. He asked for medical care for several months. Finally, on May 7, 2005, he saw a doctor, who said his situation was very dangerous. He has to undergo an operation as a result of this. He was kept at the hospital for only two days, and then returned to Camp V. We have heard his screams of pain whenever he uses the toilet. Willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power; or willfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.81 The War Crimes Act also makes it a war crime to violate CA3.82 From the outset, the Department of Justice was concerned that Administration officials could be charged with violations of the War Crimes Act for carrying out government actions for the “war on terrorism” and looked for ways to avoid the reach of the Geneva Conventions. One day he collapsed in his cell, and so we felt forced to conduct a joint protest “As they took him to the If a determination is made that on his behalf. Part of his problem is clinic, he was crying out Afghanistan was a failed State . . . that he does not speak English, so that and not a party to the [Geneva when he needs help, and when the in pain, and the guards – Convention III] treaty, various MPs finally respond to his cries, they sad to say – were legal risks of liability, litigation, say that there is no translator. It is and criminal prosecution are minilaughing at him.” cruel. Finally, we were able to pressure mized. . . . Thus, a Presidential the military into taking him back to determination against [Geneva the clinic. As they took him to the clinic, he was crying out Convention III] treaty applicability would provide the in pain, and the guards – sad to say – were laughing at him. highest assurance that no court would subsequently enterWhen he came back, he was put in the cell across from me, tain charges that American military officers, intelligence so I would hear each time he called for help from the MPs. officials, or law enforcement officials violated Geneva The MPs often refuse to respond to him, walking directly by Convention rules relating to field conduct, detention conhis cell. Last week [June 2005], he collapsed in his cell again duct or interrogation of detainees. The War Crimes Act of and they took him back to the clinic. . . . 1996 makes violation of parts of the Geneva Convention a Beating him so badly was, in the first place, a vicious act for crime in the U.S. so minor a rule violation – a rule violation committed by Letter from Attorney General John Ashcroft to President someone who is being held without being proven guilty of George W. Bush (Feb. 1, 2002).83 any crime. He has received permanent injury from this.78 Other Presidential legal advisors offered similar advice.84 C. Avoiding Liability Under the War Based on those recommendations, on February 7, 2002, Crimes Act President Bush issued a memorandum exempting alleged Parties to the Geneva Conventions are required to crimimembers of al Qaeda from all Geneva Convention pronalize “grave breaches” of the Conventions through their tections.85 President Bush determined that “none of the domestic laws, which the United States did by enacting provisions of Geneva apply to our conflict with al Qaeda 18 U.S.C. § 2441, the War Crimes Act.79 The War in Afghanistan or elsewhere throughout the world,” and Crimes Act makes it a war crime to commit a “grave” specifically concluded that al Qaeda detainees “do not breach of the Conventions.80 “Grave breaches” of the qualify as prisoners of war” and are not protected by Third Geneva Convention are defined as: CA3.86 While confirming that the Geneva Conventions applied to the U.S. conflict with the Taliban in Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 13 Afghanistan, President Bush nevertheless found that CA3 also did not apply to Taliban detainees, and that “Taliban detainees are unlawful combatants,” therefore not qualifying as “prisoners of war under Article 4 of Geneva.”87 As William H. Taft IV, former Legal Advisor, Department of State, commented last year at a conference on the Geneva Conventions, the conclusions in these memoranda “unhinged those responsible for the treatment of the detainees in Guantánamo from the legal guidelines for interrogation of detainees reflected in the Conventions and embodied in the Army Field Manual for decades.”88 These conclusions, Taft asserted, created the conditions for abusive interrogations by placing prisoners (and thus their captors) outside the law.89 According to former General Counsel of the Navy Alberto J. Mora, the interrogation techniques permitted at Guantánamo rose to the level of torture.90 On June 29, 2006, the Supreme Court decided the question of CA3’s applicability to alleged members of al Qaeda in Hamdan v. Rumsfeld, a case challenging the legality of the military commissions established by President Bush to try prisoners accused of war crimes in the war on terror.91 Rejecting the Administration’s determination, the Supreme Court ruled that CA3 applies to prisoners detained in the conflict with al Qaeda. The significance of the Court’s ruling on this and the other issues on review in Hamdan cannot be overstated; commenting on the decision, former U.S. Solicitor General Walter Dellinger stated, "[t]wo years ago I [said] that the court's 2004 enemy combatant cases were historic. And they were. But not like today's. Hamdan is simply the most important decision on presidential power and the rule of law ever. Ever."92 This is so, in large part, because the Court’s CA3 ruling confirms the unlawfulness of the U.S. government’s use of torture, cruel, humiliating and degrading treatment—all prohibited by CA3—on 14 | Guantanamo prisoners, and recognizes that binding international law places a limit on the President’s power as Commander in Chief with respect to the treatment of war prisoners. Importantly, the ruling opens the door to criminal prosecutions under the War Crimes Act of those who participated in such conduct. III. TORTURE AND CRUEL, INHUMAN, AND DEGRADING TREATMENT REPORTED AT GUANTÁNAMO A. The Prison Camps The chillingly-named Camp X-Ray exemplified a prison where every aspect of a prisoners’ life was under close observation. A temporary camp set up until more permanent facilities could be erected, Camp X-Ray housed prisoners, from January – April 2002, in cages (wire mesh units, with wood/metal covers and concrete floors). Without privacy, these units exposed prisoners to the elements and to the scorpions, spiders, and banana rats that populate the island.93 More permanent facilities for prisoners were soon built, and, in April 2002, prisoners moved into the first buildings at Camp Delta. Camp Delta is referred to informally as “the Wire,” owing to the lengths of chain link fence and concertina that surround it.94 At the camp’s main gate stands a 4 x 8 foot sign, displaying the words: “Honor Bound to Defend Freedom.”95 The actual physical layout of Camp Delta is not easy to ascertain because access is tightly controlled by the military and its public affairs staff.96 What seems clear is that Camp Delta includes five different facilities, numbering One through Five, with the numbers based on the order in which the camps were built.97 Together, Camps One to Five have a capacity of over 1000.98 Camp Echo is a separate camp where a small number of prisoners designated for military commissions once were Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba housed. It has a series of small huts with two isolation units in each hut. The units consist of a small cell containing a steel bed, toilet, and sink with a shower attached to the cell. The cells are subject to 24hour video surveillance. A small slit window and air conditioning were not added until the middle of 2004. When attorneys began meeting with clients at the base and raised objections to the impact of these severe isolation conditions on the prisoners, the military moved those prisoners out of Camp Echo and into a special block in Camp Delta.99 Camp Echo continues to be used for attorney-client meetings.100 “The female interrogator had grabbed the detainee’s genitals and bent back his thumbs. The marine then ‘implied that her treatment of that detainee was less harsh than her treatment of others by indicating that he had seen her treatment of other detainees result in detainees curling into a fetal position on the floor and crying in pain. . .’” Camp Iguana has held juveniles101 and, as of June 2006, currently houses a few prisoners who DoD has admitted are not enemy combatants.102 Camp Five, a separate state-of-the-art maximum security facility, comprises four wings of two stories, with 12 to 14 isolation cells each. Camp Five supervision is conducted from “a raised, glass-enclosed centralized control center that sits in the middle of the facility, giving the MPs a clear line of sight into both stories of each wing.”103 Army National Guard Maj. Todd Berger calls it “the nerve center of the camp.” It contains touchscreen computers that monitor and control all prisoner movement.98 The DoD claims that Camp Five houses prisoners deemed of greatest intelligence value.105 Most continuing allegations of abuse involve prisoners housed in Camp Five. DoD is constructing an additional, reportedly permanent prison structure called Camp Six. B. Types of Torture and Abuse Prisoners in Guantánamo have reported being exposed to extraordinary psychological and physical abuse. In addition to abusive interrogation practices, prisoners report harsh disciplinary measures. These reports have been corroborated by military and news accounts. The United States has systematically applied the following techniques to prisoners, in connection with interrogation and disciplinary measures, and in the context of conditions of arbitrary confinement and detention. FBI Observations at Guantánamo, Fall 2002 1. An FBI agent witnessed a female interrogator “apparently whispering in the detainee’s ear, and caressing and applying lotion to his arms (this was during Ramadan when physical contact with a woman would have been particularly offensive to a Moslim [sic] male. On more than one occasion the detainee appeared to be grimacing in pain.” The view of the agent was obscured by a curtain fixed by duct tape at the request of the interrogator, over a two-way observation mirror. The agent watched the encounter through the surveillance camera and was given to understand by a marine that the female interrogator had grabbed the detainee’s genitals and bent back his thumbs. The marine then “implied that her treatment of that detainee was less harsh than her treatment of others by indicating that he had seen her treatment of other detainees result in detainees curling into a fetal position on the floor and crying in pain. . .” 2. “In September or October of 2002 FBI agents observed that a canine was used in an aggressive manner to intimidate detainee [redacted] and, in November 2002, FBI agents observed Detainee [redacted] after he had been subjected to intense isolation for over three months. During that time period, [redacted] was totally isolated (with the exception of occasional interrogations) Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 15 in a cell that was always flooded with light. By late November, the detainee was evidencing behavior consistent with extreme psychological trauma (talking to nonexistent people, reporting hearing voices, crouching in a corner of the cell covered with a sheet for hours on end).” Letter from T. J. Harrington, Deputy Assistant Director, FBI Counterterrorism Division to Major General Donald J. Ryder, Department of the Army, Criminal Investigation Command, July 14, 2004.106 has resulted in extraordinary damage to prisoners’ mental health.109 In the first year and a half after the prison opened, eighteen individuals engaged in twenty-eight suicide attempts.110 Based on official U.S. government statements that have not been independently verified, in 2003 alone, there were 350 acts of “self-harm,” including 120 “hanging gestures.”111 In August 2003, a mass suicide attempt took place in which twenty-three prisoners tried to take their lives.112 Since that time, reports of prisoner suicide attempts have grown. Mohammed al-Qahtani’s interrogation log indicates that, after the period of isolation described, he was subject to fifty days of interrogation involving severe sleep deprivation, solitary confinement, sexual assault, physical stress, and threats.107 1. Psychological Abuse Psychological abuse includes solitary confinement, light and sound manipulation, exposure to the elements and to temperature extremes (arguably also physical abuse), sleep deprivation, and threats of transfer for torture in another country. Though government memoranda rarely comment on the rationale for these techniques, the CIA’s notorious KUBARK manual on counterintelligence interrogation suggests such techniques are able to induce regression, psychic disintegration, and feelings of helplessness that lower prisoners’ defenses, goals which are consistent with the manipulation of the torture victim.108 There are a variety of accounts – not only from the prisoners themselves, but also from government documents disclosed through FOIA and statements by former government personnel – indicating that psychological abuse at Guantánamo is unremitting and 16 | On October 8, 2005, during a visit with his attorney, Juma Al Dossari asked to use the bathroom. After a few moments, his attorney opened the door to check on his client (after hearing the toilet flush). He saw Mr. Al Dossari hanging by his neck from the upper part of the mesh wall Based on official U.S. that separates the cell area from the government statements meeting area. He had cut his arm and was bleeding. When Mr. Al that have not been independently verified, in Dossari was unresponsive, his lawyer called for help. Mr. Al 2003 alone, there were Dossari was taken by military per350 acts of “self-harm,” sonnel to a hospital at Guantánamo. Mr. Al Dossari surincluding 120 “hanging vived this attempt and has since gestures.” been placed under close surveillance.113 As reported by Physicians for Human Rights, individuals exposed to isolation for the first time develop a “predictable group of symptoms,” including “bewilderment, anxiety, frustration, dejection, boredom, obsessive thoughts or ruminations, depression, and, in some cases, hallucination.” On June 10, 2006, three prisoners were found dead in their cells. The DoD described the deaths as suicides, and the incident is currently under investigation by the Navy Criminal Investigative Services. At the time of this writing, an independent investigation had not begun. Solitary Confinement. As reported by Physicians for Human Rights, individuals exposed to isolation for the first time develop a “predictable group of symptoms,” including “bewilderment, anxiety, frustration, dejection, boredom, Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba obsessive thoughts or ruminations, depression, and, in some cases, hallucination.”114 Several Guantánamo prisoners have reported being held in solitary confinement for long periods, sometimes in excess of one year. • As of February 2004, Shaker Abdur-Raheem Aamer had spent eight months in solitary confinement.115 • Feroz Abbasi spent more than a year in solitary confinement in Camp Echo; while at Guantánamo, he has tried to kill himself. 116 • David Hicks was in solitary for almost a year in Camp Echo.117 • As of late 2005, Mr. Al Murbati had been held in isolation in Camp Five since approximately May 2004.118 • As of late 2005, Mr. Al Dossari had been held in isolation in Camp Delta, India Block, and Camp Five since early 2004.119 Several Guantánamo prisoners have reported being held in solitary confinement for long periods, sometimes in excess of one year . . . Mr. Al Dossari has been held in isolation in Camp Delta, India Block, and Camp Five since early 2004. Asif Iqbal reports that he was put in isolation for writing “have a nice day” on a polystyrene cup because it was deemed to be “malicious damage to U.S. government property.” Othman Abdulraheem Mohammad has lived under fluorescent lights twenty-four hours a day for the last three years. • Saber Lahmar and Belkacem Bensayah each were held in an isolation cell in Camp Five from August 2004 until mid October 2005. Both suffered visual deterioration and psychological trauma as a result.120 Perhaps the most egregious example is Moazzam Begg, who has stated that he was detained for a year in Bagram Air Force base in Afghanistan, where he was deprived of all natural light.121 He then was transferred to Guantánamo, where he was kept in solitary confinement for more than a year at Camp Echo.122 Asif Iqbal reports that he was put in isolation for writing “have a nice day” on a polystyrene cup because it was deemed to be “malicious damage to U.S. government property.”123 Among the other prisoners reporting solitary confinement are Mr. Latif, Mr. Alikhil, Mr. Haji, Mr. Sahgir, Mr. Ait Idir, Mr. Lahmar, and Mr. Boumediene. Light and Sound Manipulation. Othman Abdulraheem Mohammad has lived under fluorescent lights twenty-four hours a day for the last three years. Every morning he wakes up with eye pain and dizziness.124 Belkacem Bensayah lived under similar conditions for seventeen straight months and can no longer look at anything for long because he sees black spots.125 Mustafa Ait Idir was kept in isolation for two months, during which time the lights were either kept at maximum intensity, even during the night, or (occasionally and briefly) turned off completely.126 Loud music is often blared during interrogation.127 Mr. Abbasi, Mr. Al Harith, Mr. Uthman, Mr. Begg, Mr. Al Marri, Mr. Khan, and Mr. El-Meki are among the other prisoners that have experienced this form of mistreatment. Exposure and Temperature Extremes. Cells are often kept extremely hot or cold and prisoners are not given more than a single blanket at night. Saber Lahmar’s room was so cold on one occasion that ice formed on the vents.128 Jamal Al Harith recalled sleeping under a metal bed to try and protect himself from the cold air blowing in.129 Mustafa Ait Idir was left shackled in a room with the air conditioning on very high for 5 or 6 hours, exacerbating a kidney ailment he was known to have. He was then placed in a solid steel isolation cell (“very cold”), and his sleeping pad was taken away because he refused to cooperate with inter- Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 17 Guantánamo, Belkacem Bensayah was forced to get up and walk, and frequently moved from cell to cell during the night, at 30-minute intervals for a two-month period, which completely prevented him from sleeping.134 Lakhdar Boumediene was deprived of sleep On a couple of occasions, I entered interview rooms to find for 13 days during an intense interrogation period in a detainee chained hand and foot in a fetal position to the early 2002.135 During his first month at Guantánamo, floor, with no chair, food, or water. Most times they had soldiers would wake Mohamed Nechla every hour and urinated or defecated on themselves, and had been left there force him to place his shoes, brush, and soap in a certain for 18, 24 hours or more. On one occassion [sic], the air order along the side of his cage. An hour later, they conditioning had been turned down so far and the temperwould force him to line up the shoes, brush, and soap in ature was so cold in the room, that the barefooted detainee a new order. This would continue all night and was was shaking with cold. When I asked designed to prevent him from the MP’s what was going on, I was sleeping. At times, instead of Mohammed Al-Qahtani told that interrogators from the day [ ], pursuant to a special reordering the position of his prior had ordered this treatment, shoes, brush, and soap, he was and the detainee was not to be “interrogation plan” ordered to leave his cell while it moved. On another occasion, the approved by Secretary of was searched.136 Saber Lahmar A/C had been turned off, making the reported similar conduct over a Defense Donald temperature in the unventilated period of several weeks. Perhaps room probably well over 100 degrees. Rumsfeld, was subjected one of the most severe examples of The detainee was almost unconscious to fifty days of sleep sleep deprivation is that of on the floor, with a pile of hair next Mohammed Al-Qahtani who, purdeprivation. to him. He had apparently been litsuant to a special “interrogation erally pulling his own hair out Except for one day during plan” approved by Secretary of throughout the night.132 this period, Mr. Al-Qahtani Defense Donald Rumsfeld,137 was Other prisoners exposed to tempersubjected to fifty days of sleep was permitted to sleep ature extremes are John Doe 1 deprivation. Except for one day no more than four hours a during this period, Mr. Al-Qahtani (Afghani), Mr. Ahmed, Mr. Ahmad, Mr. Hassan, Mr. Boudella, was permitted to sleep no more day. Mr. Lamar, Mr. Kurnaz, twelve than four hours a day between the Kuwaiti prisoners, and Mr. Rasul. hours of 7:00 a.m. and 11:00 a.m. Other prisoners who report experiencing sleep deprivation include Mr. Hicks, Sleep Deprivation. Sleep deprivation causes deterioraMr. Abbasi, Mr. Habib, Mr. Esmail, and Mr. Abd altion in cognitive abilities, including “impairments in Malik al-Wahab. memory, learning, logical reasoning, arithmetic skills, complex verbal processing, and decision making.”133 It Threatened with Transfer to Another Country, for has been used as a frequent tactic to disorient and menTorture. Interrogators have threatened to transfer pristally weaken prisoners at Guantánamo. oners to countries where torture is routinely practiced to intimidate prisoners into cooperating or to induce “conPrisoners have reported that they are prevented from fessions.” The juvenile O.K. stated that interrogators sleeping by loud noises, fans, soldiers making banging threatened to send him to Egypt, Israel, Jordan, or Syria noises, and even being moved from cell to cell or to if he did not cooperate.138 Mr. Al Murbati stated he was other locations in the camp. When he first arrived at told by an interrogator that if he did not cooperate he rogators.130 The juvenile O.K. spent a month in isolation in a room “like a refrigerator.”131 An FBI interrogator has documented the use of cold temperatures and sleep deprivation by military guards: 18 | Lakhdar Boumediene was deprived of sleep for 13 days during an intense interrogation period in early 2002. Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba would be transferred back to Bahrain to be imprisoned or sent to Saudi Arabia where “they have no mercy.”139 Mr. Boumediene reported that on one occasion, he was choked by a Jordanian interrogator who then threatened to send Mr. Boumediene to Jordan where they could “make [him] talk.”140 “There, in an interrogation room, he was shackled to the floor by his hands and feet, with his hands pulled underneath his legs. For approximately 12 hours, very loud music and white noise was played through six speakers arranged close to Mr. Al Murbati’s head.” Within a few days of arriving at Guantánamo, two older interrogators dressed in civilian clothing showed Mr. Al Murbati a document. The interrogators told Mr. Al Murbati that the document was a transcription of an audiotape made of a highranking al Qaeda member from Kuwait that described potential targets. The interrogators asked Mr. Al Murbati where the next attack would occur. When Mr. Al Murbati was unable to respond he was put in solitary confinement and threatened with a transfer to Egypt where, he was told, he would be tortured. Typically, Mr. Al Murbati’s interrogations in Camp Delta were conducted from approximately 6 a.m. until 4 p.m., or from 10 p.m. until 4 a.m. For the entirety of most sessions, Mr. Al Murbati was made to sit on the floor with his ankles shackled to the floor and with his hands pulled under his legs and also shackled to the floor. During certain interrogations, the air conditioning was set very high, making the interrogation room quite cold. At other times, there would be no air conditioning, making the interrogation room very hot. On multiple occasions, the floor of the interrogation room had been treated by what appeared to be a mixture of water and a powerful cleaning agent. This mixture would be thrown on Mr. Al Murbati’s face and body, causing great irritation. Because he would be shackled when this occurred, Mr. Al Murbati was unable to do anything to alleviate the irritation. Especially when the air conditioning was turned off, the cleaning agent that was put on the floor would make breathing difficult. The cleaning agent also caused mucous discharges from Mr. Al Murbati’s nose. Several days after a contentious interrogation, Mr. Al Murbati was taken from Camp Three to Camp One. There, in an interrogation room, he was shackled to the floor by his hands and feet, with his hands pulled underneath his legs. For approximately 12 hours, very loud music and white noise was played through six speakers arranged close to Mr. Al Murbati’s head. This technique was used on multiple other occasions as well, most of which occurred in or around Ramadan 2003 (October and November). In certain sessions, multiple flashing strobe lights were used as well; these lights were so strong that Mr. Al Murbati had to keep his eyes closed. The interrogation rooms were always cold when the music and strobe lights were employed. Generally, Mr. Al Murbati was not asked any specific questions during these sessions, although sometimes he was told that he needed to cooperate generally. When Mr. Al Murbati was not in the interrogation room during this period, he was moved from cell to cell ..., typically on an hourly basis. As such, Mr. Al Murbati was never able to sleep for more than short periods even when not in the interrogation rooms. Mr. Al Murbati knows of at least one other detainee (Faruk el Meki, a Saudi) who was subjected to similar treatment with respect to the use of music in the interrogation room and frequent moves among cells. At other times, when Mr. Al Murbati was shackled and facing away from the door, someone would enter the room quietly and then blow a very loud horn in Mr. Al Murbati’s ear.141 Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 19 2. Physical Abuse Numerous reports of extreme physical abuse have emerged from Guantánamo. Physical abuse is often meted out systematically by the specially trained “Immediate Reaction Force” (IRF); at other times, soldiers have beaten prisoners for no apparent reason or in connection with an alleged violation of a camp disciplinary rule. Some prisoners have sustained permanent physical injury as a result. Physical Beatings. Beatings are the most frequently reported form of mistreatment, with many prisoners providing details of such physical mistreatment. Prisoners assert that pretexts for physical punishment are frequently devised. Mr. Al-Harith said prisoners had been punished for keeping six packets of salt in their cell instead of five and for hanging their towels through their cages when they weren’t wet.142 Military reports admit that many prisoners have been thrown or dropped on the ground or thrown against walls.143 Several prisoners report that assailants jumped on their backs or shoved their heads into hard surfaces while they were incapacitated and lying on the ground.144 For example, Yasein Khasem Mohammed Esmail claims that when he arrived in Guantánamo, while he was still shackled, he was thrown into the air and allowed to fall to the ground. When he lay on the ground, soldiers stomped on him.145 A group of soldiers sprayed Mr. al-Wahab with “disorienting gas,” burst in his cell, handcuffed him, pulled him out of his cell, and pushed and rubbed his head against concrete until he lost consciousness.146 Mustafa Ait Idir sat down on the floor when guards, angry because he had asked to see an officer, told him to; the vindictive guards tied his hands behind his back, picked him up and banged his body and head into the side of his steel bunk. They threw him down and pounded his head into the floor.147 Many other prisoners describe frequent and vicious beatings. Lakhdar Boumediene described several occasions in early 2002 when guards returned him to his cell following interrogation, grabbed him under his armpits, lifted him up, and threw him to his cage floor repeatedly while his wrists were shackled to his waist and his feet were shackled to an anchor in the floor of his cage.148 Mr. Boumediene also stated that on one occasion, a soldier pushed him to the ground, put his knee behind Mr. 20 | Boumediene’s knee, and ground Mr. Boumediene’s knee into the floor. He now has a scar he attributes to that beating.149 Sami Al-Laithi, a pro-democracy English teacher who was determined to be “no longer an enemy combatant” on May 10, 2005, and was later released, is now confined to a wheelchair as a result of beatings by the U.S. military. Sami Al-Laithi was a teacher at Kabul University. He taught Arabic and English. Mr. Al-Laithi spent 17 years teaching English in Pakistan and Afghanistan, believing that he was helping the cause of the U.S. He has never been an opponent of the U.S., but says he has “always believed in U.S. ideology” of democracy and rule of law. Mr. Al-Laithi is not, and never has been, an Islamic extremist. He was interested only in teaching and in playing football. He opposed the Taliban, because he believes in democracy, freedom, and open elections. These are the same reasons for his consistent opposition to the repressive regime of Egyptian President Hosni Mubarak. As a result of his criticism of the Mubarak regime, he was pursued by Egyptian agents intent on kidnapping or murdering him. He then fled to Pakistan and Afghanistan where he has lived and worked for 17 years.150 Though a healthy man when taken into U.S. custody, Mr. Al-Laithi is now confined to a wheelchair with two broken vertebrae. He attributes his current infirmity to severe beatings that he received soon after arriving at GTMO. “Once they stomped my back,” Al-Laithi wrote [in an affidavit filed recently with the district court]. “An MP threw me on the floor, and they lifted me up and slammed me back down. A doctor said I have two broken vertebrae and I risk being paralyzed if the spinal cord is injured more.”151 Al-Laithi said his neck is also permanently damaged because IRF teams repeatedly forced him to bend over toward his knees. While many prisoners have had their anuses probed during strip searches, Mr. Al-Laithi also alleges that the military forced a large object into his anus on the pretext of doing a medical exam. “I am in constant pain,” he continued. “I would prefer to be buried alive than continue to receive the treatment I receive. At least I would suffer less and die.” 152 Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba A military spokesperson indicates that the military takes no responsibility for Mr. Al-Laithi’s condition, saying that the fractured vertebrae are the result of a degenerative disease.153 Short-Shackling and Stress Positions. Short-shackling – a very painful technique in which a prisoner’s arms and legs are shackled together and to the ground, forcing him into a stooped position, often for many hours at a time – was routinely employed at Guantánamo until April 2003, but sporadic reports of its use persist. Reports of shortshackling include the following: Abdullah Majed Sayyah Hassan Al Noaimi was shackled for hours in a room that had been made frigid by an air conditioner.154 Tarek Dergoul was short shackled in an interrogation room alone for eight hours and eventually urinated on himself.155 Shafiq Rasul was also left short shackled for long periods of time and would often miss meals and prayers.156 Murat Kurnaz was short shackled to the floor for almost 24 hours and forced to urinate on himself.157 As a result of being held in stress positions for extended periods of time in short-shackles or other restraints, prisoners have reported suffering from permanent back, knee, and other joint injuries.158 The Immediate Reaction Force (IRF). Some of the most severe physical abuse reported at Guantánamo is attributed to the IRF.159 Comparable to a riot squad, the IRF functions as a disciplinary force within the camps. As documented by the former military intelligence linguist, Sergeant Eric Saar, military police (MP) rotate on and off IRF duty and may not always be trained adequately for the job.160 MPs carry Plexiglas shields and frequently use tear gas or pepper spray. Though domestic and international law forbid the use of physical force to punish, rather than restrain, prisoners, Guantánamo prisoners are frequently IRF’d as punishment.161 Because of the acronym IRF, “being IRF’d” is Guantánamo-speak for being beaten by a group of military guards.162 These incidents are usually videotaped, but the U.S. military has closely guarded the tapes and so far asserts they are exempt from FOIA review.163 However, in June 2004, the U.S. Southern Command issued a short report after viewing 20 of 500 hours of thenavailable IRF videos. The report concluded that the tapes raised questions about abuse and misconduct. In one video, the IRF punched a prisoner “on an area of his body that seemingly would be inconsistent with striking a pressure point.” In another, an IRF guard repeatedly sprayed pepper spray on a prisoner and taunted him. In a third, guards tied a prisoner to a gurney for interrogation.164 Mr. Al Dossari returned to his cell and saw that the few items that had been in his cell had been removed. The MP on duty, named Webster, pushed him to the ground of the cell and cursed at him. Mr. Al Dossari yelled in response. The MP called for the Immediate Reaction Force (IRF). DoD internal investigation memorandum Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 21 When the IRF team arrived, it found Mr. Al Dossari lying on his stomach with his hands on his back. Nonetheless, an MP named Smith burst into the cage and jumped on Mr. Al Dossari’s back wearing full riot gear. According to other detainees who viewed this incident, Smith weighed approximately 240 pounds. At least two other men held Mr. Al Dossari by the legs. MP Smith began to choke him with his hands, while another repeatedly hit his head on the floor. While being beaten, Mr. Al Dossari lost consciousness. Former Guantánamo detainees from the United Kingdom who witnessed the incident later told Mr. Al Dossari that the IRF team held his face on display for the video camera after he had lost consciousness. When the cage was hosed down later, the water ran red with blood. Mr. Al Dossari later asked Smith why Smith had beaten him. Smith replied, “because I’m Christian.” 165 The force used by the IRF is illustrated by an injury sustained by an American soldier who was ordered to act as a prisoner in a “training” exercise. Because the guards believed they were restraining an actual prisoner, not a U.S. soldier, they used the force regularly used against prisoners, slamming the soldier’s head into the floor and grinding his temple into the steel. He suffered a traumatic brain injury and now has epilepsy, with up to 12 seizures a day. The U.S. military reports that the video of this episode is “missing.”166 22 | The force used by the IRF is illustrated by an injury sustained by an American soldier who was ordered to act as a prisoner in a “training” exercise. Because the guards believed they were restraining an actual prisoner, not a U.S. soldier, they used the force regularly used against prisoners, slamming the soldier’s head into the floor and grinding his temple into the steel. He suffered a traumatic brain injury and now has epilepsy, with up to 12 seizures a day. The U.S. military reports that the video of this episode is “missing.” In July 2005, the New England Journal of Medicine published a report criticizing Guantánamo medical personnel for violating medical ethics by sharing confidential medical records with interrogators. 3. Medical Abuse Doctors’ Involvement in Interrogations. Doctors and psychologists have reportedly been actively involved in abuse and interrogation at Guantánamo. In July 2005, the New England Journal of Medicine published a report criticizing Guantánamo medical personnel for violating medical ethics by sharing confidential medical records with interrogators.167 The report noted that, while the “laws of war defer to medical ethics,” the American military was requiring its medical personnel, as a matter of policy, to violate those ethics.168 For example, the report documents that medical personnel shared prisoners’ medical records with interrogators from the very beginning, though initially the ostensible purpose was to limit interrogation techniques based on prisoners’ health status. An August 6, 2002, DoD memorandum expressly required military medical personnel at Guantánamo to breach patient confidentiality and communicate medical information to non-medical military personnel and to volunteer information considered of value.169 Prisoners report that information is the camp currency, and interrogators control access to medical care based on prisoners’ level of cooperation in interrogations. Othman Abdulraheem Mohammad reported that he had a rash on his back and was told it would not be treated until he cooperated with interrogators.170 Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba Mr. Boumediene relayed that for an extended period, States, at times, has refused to provide necessary treatevery time he made a request, for example, for medicament. Mr. Ruhel Ahmed, one of the British prisoners tion, he was told to ask his interwho first called attention to abuse rogator. Interrogators controlled at Guantánamo, had a need for Medical personnel corrective lenses because of an eye his access to medical treatment, monitored Mohammed al problem that, left untreated, and access to that treatment was Qahtani’s interrogation would cause permanent damage. granted or denied based on the He did not receive the lenses for interrogator’s assessment of his during a period of nearly 170 one and a half years and, when he level of cooperation. two months of severe did, he was not given solution to Medical records obtained in FOIA sleep deprivation and rinse them.He now has permanent litigation brought by counsel for severe damage to his eyes.174 physical stress. At one the Bosnian prisoners confirm that point, they rushed him to In other instances, prisoners have medical staff were sometimes present during prisoner interrogations reported that doctors forced, or the base hospital when and authorized interrogations to attempted to force, unnecessary his heart rate dropped proceed. On one occasion, Mr. amputations.175 Omar Deghayes dangerously low. After describes how even prisoners who Boumediene complained of stomhave had limbs removed do not ach pain while being interrogated. stabilizing him, they receive the treatment they need. Medical personnel entered the returned him for further interrogation room, examined Mr. interrogation the following The plight of the people who have Boumediene, and “cleared” him for had limbs amputated is among the day. “interrogation and all other saddest of the conditions of this ugly detainee things.”172 Medical percamp. I have twice been housed next sonnel monitored Mohammed al to prisoners with prosthetic limbs. It “The prisoners were Qahtani’s interrogation during a effectively blackmailed by was one of the most depressing expeperiod of nearly two months of riences I have endured. The prisoners severe sleep deprivation and physitheir interrogators who were effectively blackmailed by their cal stress. At one point, they rushed said that they had to interrogators who said that they had him to the base hospital when his cooperate in order to get to cooperate in order to get their prosheart rate dropped dangerously thetic devices back. They are denied their prosthetic devices low. After stabilizing him, they the toilet chairs, the sticks they need returned him for further interrogaback. They are denied the to walk and even the cream they tion the following day.173 need to ensure that the wound will toilet chairs, the sticks Withholding Medical Care or not become infected and inflamed. they need to walk and Conducting Unnecessary Medical The pain is apparently particularly even the cream they Procedures. The military has been great when they are denied the necesneed to ensure that the accused of withholding needed sary prosthetic socks, so that the medical care that has resulted in wounds are exposed to the extreme wound will not become permanent injuries and disabilities, cold of the cells.176 infected and inflamed.” in addition to furthering prisoners’ BSCT Teams. In addition to parpain or suffering. In other cases, ticipation in medical abuse and neglect, psychiatrists and prisoners have described doctors performing unnecessary psychologists also assisted in designing the extreme procedures. interrogation techniques discussed above, as part of the Even minor conditions, if neglected, can develop into Behavioral Science Consultation Team (BSCT, propermanent or life-endangering illnesses, yet the United nounced “Biscuit”).177 In late 2002, BSCT was tasked Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 23 When he pushed away a torment detainees in interrogations with developing new strategies to “improve” the productivity of to try to sever their relationship woman who placed her interrogations. Other medical perwith God, I probably would have hand down his shirt, he sonnel were apparently drawn into thought that sounded fine. And if was beaten by an IRF the execution of these extreme someone had spelled out for me team and left shackled for the details of the interrogation I interrogation techniques. Mr. Ait Idir observed that medical personhad just participated in, I probably about 20 hours. nel also have played a role in disciwould have approved. pline. If the guards claimed a But I hated myself as I walked out of that room, even prisoner had misbehaved, regardless of whether the allethough I was pretty sure we were talking to a piece of gation of misbehavior was true, a medical staff member shit in there. I felt as if I had lost something. We lost would “determine” that the prisoner had “mental probsomething. We lost the high road. We cashed in our lems.” After such a determination was made, everything, principles in the hope of obtaining a piece of inforexcept underwear and the Qur’an, was removed from mation. And it didn’t even fucking work.182 the cell as a way of punishing the prisoner.178 A document produced pursuant to the FOIA includes a Dr. Robert Jay Lifton, an authority on the participation description of an interrogation that resembled a fraterniof doctors in torture, says of the role Guantánamo and ty party. Abu Ghraib doctors have played: “The doctors thus At this point in time the session advanced into what can brought a medical component to . . . an ‘atrocity-proonly be described as the proverbial “strip club lap dance.” ducing situation’ – one so structured, psychologically The ICE personnel [redacted] removed her overblouse and militarily, that ordinary people can readily engage in behind the individual and proceeded stroking his hair and atrocities. . . . [In such situations, t]he participation of neck while uttering sexual overtones and making comments doctors can confer an aura of legitimacy and can even 179 about his religious affiliation. The session progressed to create an illusion of therapy and healing.” where she was seated on his lap making sexual affiliated 4. Sexual Provocation, Rape, and Harassment movements with her chest and pelvis while again speaking Photographs of military personnel sexually abusing prissexual [sic] oriented sentences. This then progressed to the oners at Abu Ghraib published in 2004 sent shock individual being placed on the floor with her straddling waves around the world. The use of sexual degradation him, etc. Needless to say many inappropriate comments and humiliation techniques was developed at were made during this time concerning the session and the Guantánamo and then exported to Iraq. Prisoners report area had the atmosphere of a party. During this period, I an alarming incidence of sexual abuse, particularly by became very uncomfortable and departed the monitoring interrogators. Mr. Al Noaimi said that female MPs freare[a]. I went to the MP monitoring area where I found quently searched him and other prisoners, touching approximately 4-6 personnel watching the session as well. their bodies.180 An incident where a female interrogator Again derogatory comments flourished. I witnessed [redactsmeared fake menstrual blood on a prisoner has been ed] as well as a “guard” watching for any officer personnel. widely reported in the press; the intent of this appalling ACS Defense Analyst, Memorandum for Record re: Possible treatment was to make the prisoner feel so unclean that Inappropriate Activities (26 April 2003). 183 he would not be able to pray.181 In many respects, this Prisoners report that sex frequently is used to harass abuse has both a particular religious as well as a sexual them. Women wearing bikinis and lingerie sexually component. After witnessing one such incident, former taunted Murat Kurnaz on two occasions and suggested military intelligence linguist Sergeant Saar relates that he they would do sexual favors in return for cooperation. said to himself: When he pushed away a woman who placed her hand Had someone come to me before I left for Gitmo down his shirt, he was beaten by an IRF team and left and told me that we would use women to sexually shackled for about 20 hours.184 Sexual provocations by 24 | Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba female interrogators carried this distinctly religious dimension, as Islam places restrictions on physical contact between unrelated men and women.185 ed to enter the cell while another MP stood lookout, but either due to a fear of detection or a change of mind, he left the cell and did not carry out his threat.190 Mr. Boumediene reported that his interrogators threatened to send him to an American prison where he would be raped; they also threatened to shave his beard and apply lipstick to him.191 On another occasion . . . Al Dossari was taken to an interrogation room in the Orange Building in Camp Delta. Adjacent to this interrogation room was a computer room. The door to the computer room was open when Mr. Al 5. Religious and Cultural Abuse Dossari was brought into the interrogation room and shackled to the floor. Through the door Mr. Al Dossari saw Guantánamo techniques include conduct intended to a man and woman who were naked and having sex on a “soften up” prisoners by abusing items or disrupting rittable in the computer room. The MPs who brought Mr. Al uals known to have particular importance for Muslims. Dossari into the interrogation room observed this as well Desecration of the Qur’an. The statements of prisoners although they quickly left after shackling Mr. Al Dossari. to their attorneys indicate that desecration of the Qur’an After several minutes, the man got up from the table and is widespread. Many prisoners describe guards and interremoved a condom that he had been wearing. He gave Mr. rogators as regularly defiling the Qur’an by touching it Al Dossari a “thumbs-up” gesture and asked “good?” The intentionally, dropping it, stepping on it, and throwing man and woman then dressed and came into the interrogait on the ground. In the early days of Camp X-Ray, soltion room. The man showed Mr. Al Dossari pictures of peodiers repeatedly threw copies of the Qur’an on the ple wearing traditional Saudi dress. He asked if Mr. Al ground.192 Mr. Ait Idir witnessed a Dossari could tell him anything guard throw a Qur’an on the about the people in the pictures. He The released British ground and place underwear on said that if Mr. Al Dossari provided prisoners allege that top of it,187 and he saw a superviany information Mr. Al Dossari sor order a soldier to search the several young prisoners could have sex with his “girlfriend” Qur’an, even after the soldier said and indicated the woman. Mr. Al said they were taken to that he was not supposed to touch Dossari did not respond and after isolated sections of the it.194 The mass suicide attempted approximately 30 minutes of further prison and raped by in the summer of 2003 was organquestioning the man and woman ized to protest abuse of the Qur’an guards. left. Mr. Al Dossari had never seen after an interrogator had thrown a these individuals before this incident prisoner’s Qur’an on the floor, 186 and has not seen them since. “stepped on it, and kicked it across the room.”195 Not all sexual abuse occurs in connection with interroAbuse of the Qur’an also appears to be used to provoke gation or is heterosexual. The released British prisoners the prisoners to anger, after which the IRF is called to allege that several young prisoners said they were taken forcibly punish them. James Yee, the former military to isolated sections of the prison and raped by guards.187 chaplain at Guantánamo, describes MPs purposely treatThese prisoners also said that an Algerian man was ing the Qur’an with disrespect: “forced to watch a video supposedly showing two prisoners dressed in orange, one sodomizing the other, and The most contentious issue . . . was the way many MPs was told that it would happen to him if he didn’t coophandled the detainees’ Qur’ans. This is an extremely sensierate.”188 One of the twelve Kuwaiti prisoners was tive practice, as the Qur’an is the most respected book in shown a packet of condoms and told that if he didn’t Islam. Muslims believe that the Qur’an contains the actual talk, the condoms would be used on him.189 On one words of God and therefore is to be treated with the utmost occasion, while Mr. Al Noaimi was in his cell, an MP respect. Muslims keep the Qur’an in a high place inside our from Unit 94 threatened to rape him and taunted him homes as a show of respect and would never allow it to by winking and blowing kisses at him. The MP attempttouch the floor or any place that is even slightly dirty. Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 25 Muslims also believe that a condition for handling the Qur’an is cleanliness and ritual purity. Some stricter interpretations of Islamic law even consider a non-Muslim handling the Qur’an as sacrilegious. shaved three times by Military Personnel; one time he was shaved so that he was left with a cross-shaped patch of hair.198 Other prisoners have stated that some guards mock the call to prayer by barking like dogs or donkeys.199 An oft-reported form of punishment at Guantánamo also included transferring a prisoner to “Romeo” block where guards would remove the prisoner’s pants.200 This prevented the prisoner from praying because a Muslim man cannot pray unless his waist and legs are covered.201 Guards understood this but didn’t respect it. They claimed detainees might be hiding a weapon inside their Qur’an, and in plain view of the prisoners MPs would violently shake the Qur’an, looking for something to drop out. They’d break the binding and drop the Qur’an on the floor. I never heard of an incident where a detainee hid anything dangerous in the Qur’an – doing so would be considered an Mustapha Ait Idir described in detail how he was severeinsult. The detainees would become outraged when the ly injured trying to resist an orchestrated instance of colguards touched their holy books, and this behavior often led lective religious-physical abuse that took place at Romeo to some of the worst clashes on the blocks. Once a female Block.202 MP was being particularly rough Knowing that Arab men are with a prisoner she was escorting to required to be clothed while praying, “With the other the showers. He spat at her and the military police ordered all 48 prisdetainees watching, she oners in Romeo Block to give up IRF team was summoned. After he had been taken to MSU, she was took the prisoner’s Qur’an their pants. Mr. Ait Idir told the assigned to clear out his cell and take guards that, as a Muslim, he would and threw it forcefully away all of his personal items. With down into the bag at her be unable to pray without his pants the other detainees watching, she on, and so he begged them not to took the prisoner’s Qur’an and threw feet. She knew what she force him to undress. He offered it forcefully down into the bag at her was doing. The detainees them his shoes only. The guards feet. She knew what she was doing. threatened to use force. who saw this became The detainees who saw this became A colonel – with a flower on his hat enraged and a massive enraged and a massive riot ensued, in which she was drenched with riot ensued, in which she – spoke with him and demanded the pants. The officer told him the water. She later told Eke that she was drenched with water. IRF would forcibly take the pants. had deliberately provoked it. “You The Colonel would make no accomShe later told Eke that should have seen how nuts it got,” modation to allow Mustafa to pray she told him. she had deliberately in his pants. Mr. Ait Idir offered to . . . I frequently had to replace provoked it. ‘You should give up the pants if the officer promQur’ans when pages were ripped and have seen how nuts it ised to return them for prayers. The bindings broken as the MPs searched officer said the pants would not be got,’ she told him.” them.196 returned for prayers. Religious Humiliation and When the officer left to summon the IRF, Mr. Ait Idir Interference with Religious Practices. Prisoners report feared the soldiers would leave him naked. He tore off a additional abusive practices targeted specifically to portion of his pants and left it in a corner of his cell. He humiliate them as Muslims or to interfere with their also put on his short pants underneath so he would not be ability to practice Islam. For example, prisoners were freleft naked if they took his pants. quently shaved as punishment. Lakhdar Boumediene As threatened, the IRF came. Before entering, they sprayed said that growing a beard is a form of Muslim religious 197 tear gas into his cell. He shielded his face behind his sleeping expression but “the U.S. thinks it marks a terrorist.” pad. After the spraying stopped, the IRF – in full protective Fahmi Abdullah Ahmed Al Towlaqi has had his head 26 | Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba gear – charged into the cell. He struck defensively at the first soldier – who carried a shield. Mr. Ait Idir, a former demonstration team Karate champion, knocked the soldier back, and all 5 IRF members retreated . The colonel returned and again demanded the pants. Mr. Ait Idir pleaded that he could not give up his pants or he could not pray. A few minutes later the IRF resumed tear gas spraying. By then many internees near him . . . were yelling, encouraging him to surrender his pants so he would not be injured. The second IRF enforcer grabbed Mr. Ait Idir’s legs and wrapped them in a tight hug, trying to knock him over. Mr. Ait Idir struggled to knock the enforcer away. His eyes were blurry and stinging from the spray. The lead IRF enforcer ran back from the wall and grabbed Mr. Ait Idir’s testicles and squeezed. The IRF charged into his cell again. Mr. Ait Idir again assumed a defensive posture and managed to drive them out of his cell. The officer again approached and asked Mustafa to surrender his pants. Other internees were by then pleading with him to give up his pants. Mr. Ait Idir again offered his pants, if he could have them back when he needed them to pray. He was told the pants would be taken away and he would not get them back to pray. The third spray event was much more prolonged and intense than the first two. His cage was so filled with spray that he could not see. When the IRF entered, Mr. Ait Idir again defended his pants. He knocked the first IRF enforcer to the side. By then, a second IRF enforcer was in the cell. He and Mr. Ait Idir were wrestling with each other. Then a soldier The second IRF enforcer grabbed Mr. Ait Idir’s legs and wrapped them in a tight hug, trying to knock him over. Mr. Ait Idir struggled to knock the enforcer away. His eyes were blurry and stinging from the spray. The lead IRF enforcer ran back from the wall and grabbed Mr. Ait Idir’s testicles and squeezed. Mr. Ait Idir was in intense pain. He feared he would be crippled and lay down in a fetal position. The IRF enforcers jumped on him. The first team member landed on his back while he was face down; the second did the same. Both landed on their padded knees. Mr. Ait Idir’s hands now were behind his back, secured in restraints by the IRF enforcers. While the two enforcers pinned him down – after he had stopped resisting and his hands were tied, and after he was fully in their control, one of the guards slowly bent his fingers back until one of them broke. The pain was excruciating, but he was afraid that if he screamed the IRF would react by injuring him further.203 He was not given medical treatment for his fingers despite many requests and the clear deformity of his hand. Religious abuse at Guantánamo is systematic, calculated, and part of the disciplinary system. Prisoners are punished for infractions, such as refusing to talk, by having their religious items taken from them. When a prisoner is “reclassified” from level one to level two, he loses his prayer mat; at level three, he loses his beads, and so on.204 Religious abuse has been used to coerce interrogations, including at Ramadan when guards have withheld food at the break of fast.205 Moazzam Begg observed: “it is the faith of the detainees that is targeted: the religion of Islam.”206 jumped on the left side of his head with full weight, forcing stones to cut into Mr. Ait Idir’s face near his eye. . . . As a result of this incident, the left side of Mr. Ait Idir’s face became paralyzed for several months. Mr. Ait Idir’s resistance during the episode of religious-physical abuse described above led to a further, unprovoked attack, which ultimately resulted in partial facial paralysis and a life-long disability. One day shortly after the pantsrelated beating, guards told him they wanted to search his cell. There had been no intervening disciplinary issues. He sat on the floor as instructed. Despite his full cooperation, he was sprayed in the face with chemical irritant, and put into restraints. Guards then Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 27 slammed him head first into the with cigarettes and that he was Al Hela describes a cell floor, lowered him, face-first made to walk barefoot over broken detention facility in Kabul, into the toilet and flushed the toiglass and his head was pushed into let – submerging his head. He was where he says prisoners the ground, into the glass. Mr. Al Dossari further reports that during then carried outside and thrown were kept completely an interrogation, interrogators onto the crushed stones that surisolated and deprived of shocked him with an electric round the cells. While he was light, in a place they device and poured a hot liquid down on the ground, his assailants over his head. When he asked for a stuffed a hose in his mouth and called “prison of doctor, they spat on him and forced water down his throat. darkness.” replied, “We brought you here to Then a soldier jumped on the left kill you.” At night, he said the solside of his head with full weight, diers would line him up with other prisoners and threatforcing stones to cut into Mr. Ait Idir’s face near his eye. en to shoot them if any moved. If they did move, The guards twisted his middle finger and thumb on his though not shot, prisoners were beaten. In addition, he right hand back almost to the point of breaking them. claims he saw an American soldier throw a Qur’an into The knuckles were dislocated. As a result of this incia bucket used as a collective toilet for prisoners in his dent, the left side of Mr. Ait Idir’s face became paralyzed tent.212 for several months. The symptoms from that attack continue to plague him two years later.207 Murat Kurnaz reports that while in Kandahar, his head Cultural Abuses. Cultural insult also is a feature of prisand upper body repeatedly were submerged in water to oner life at Guantánamo. Mr. Al Qosi saw prisoners the point of near drowning, a practice called water208 being wrapped in Israeli flags during interrogations. boarding,213 and he had electric shocks applied to his FBI Deputy Director T.J. Harrington corroborates this feet. He was hung by his hands and left for days at a 209 account in a memo released through FOIA litigation. time, sometimes without food.214 Also in Kandahar, a Kuwaiti prisoner was allegedly beaten by US forces, susThe U.S. Southcom report reviewing a small number of pended upside down and beaten again. They squeezed selected IRF videos confirms that on some occasions the his testicles, made him strip, and screamed, “You’re a IRF teams have been all-female. Stopping short of drawmember of Al Qaeda!”215 Abdulsalam Ali Abdulrahman ing the conclusion that military officials intended to Al Hela describes a detention facility in Kabul, where he offend Muslim men, who are forbidden to be touched says prisoners were kept completely isolated and by women who are not their wives, the report noted, “A deprived of light, in a place they called “prison of darkdetainee appears to be genuinely traumatized by a ness.”216 female escort securing the detainee’s leg irons,” and called the use of an all-female IRF team “inexplicabl[e].” Australian Mamdouh Habib, who was released from Tellingly, the report recommended “talking points” to Guantánamo in January 2005, has alleged incidents of “refute or diminish the charge that we use women highly sophisticated methods of torture while he was (against) the detainees’ culture or religion.”210 held in Egypt and Pakistan, where U.S. authorities had taken him before they removed him to Guantánamo: 6. Pre-Guantánamo Torture and Cruel, Inhuman and Degrading Treatment Horrific as is the treatment alleged at Guantánamo, prisoners have reported that what happened to them before their arrival there was in many cases even worse.211 Mr. Al Dossari, the prisoner who recently tried to commit suicide during his lawyer’s visit, described exceptional abuse while in U.S. custody in Kandahar. He alleges that U.S. soldiers urinated on prisoners and burned them 28 | On another occasion, Mr. Habib was suspended from hooks on the wall, with his feet resting on the side of a large cylindrical drum. Down the middle of this drum ran a metal rod, with wires attached at both ends. The wires ran to what appeared to be an electric battery. When Mr. Habib did not give the answers his interrogators wanted, they threw a switch and a jolt of electricity ran through the rod, electrifying the drum on which Mr. Habib stood. The Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba action of Mr. Habib “dancing” on the drum forced it to rotate, and his feet constantly slipped, leaving him suspended by only the hooks on the wall. The instinctive struggle to regain his balance forced him to place his feet back on the drum, which of course only sent another excruciating jolt of electricity into his feet. Eventually, Mr. Habib was forced to raise his legs, leaving him to hang by his outstretched arms until he could stand it no longer and, exhausted, he dropped his legs back onto the electrified drum. This ingenious cruelty lasted until Mr. Habib finally fainted.217 IV. THE ABUSE CONTINUES Abusive treatment continues at Guantánamo. Though some practices, such as short-shackling, may have been officially discontinued, manipulation of light and physical abuse remain severe problems.218 Allegations of sexual humiliation and abuse of the Qur’an continue.219 Sleep deprivation in Camp Five remains a serious issue.220 • Removal of juveniles from Camp Five • End of religious abuse225 The United States has maintained that hunger-striking prisoners received medical care, but attorneys for 21year-old hunger-striker, Yousef Al-Shehri, described him as “visibly weak and frail,” wincing in pain from a nasal tube, and requiring the support of a “walker.”226 He had difficulty speaking because of lesions in his throat caused by involuntary force-feeding, administered without anesthesia.227 His sickening descriptions of how hunger-striking prisoners are treated, with the approval of medical personnel, allege disturbing, serious abuse. These large tubes – the thickness of a finger, he estimated – were viewed by the detainees as objects of torture. They were forcibly shoved up the detainees’ noses and down into their stomachs. No anesthesia or sedative was provided to alleviate the obvious trauma of the procedure. Yousef said that he could not breath with this thick tube inserted into his nose As recently as August 2005, Hisham Sliti, while in (which was so large it caused his nostril to distend). When shackles, was severely abused during an “interrogation.” the tube was removed, it was even He reported that the interrogator more painful, and blood came threw a chair at him and severely gushing out of him. He fainted, The United States has injured his eye.221 The interrogator and several of the other detainees maintained that hungeralso threw a mini-refrigerator at also lost consciousness. The him, and then MPs appeared and detainees were told by the guards: striking prisoners beat Mr. Sliti further.222 “we did this on purpose to make received medical care, you stop the hunger strike.” They In response to these abuses, prisonbut attorneys for 21-year- were told that this tube would be ers began hunger strike protests in old hunger-striker, Yousef inserted and removed twice a day, June 2005. Initially called off when Al-Shehri, described him every day until the hunger strike camp officials negotiated with prisended. Yousef described the pain as oners and promised to bring the as “visibly weak and frail,” “unbearable.” camps into compliance with the Geneva Conventions, the hunger strike was reinstated in August 2005 after officials reneged on their promises.223 Prisoners who were designated as Prisoners Council in negotiations were put into isolation.224 wincing in pain from a nasal tube, and requiring the support of a “walker.” • Release or prosecution of real charges Yousef explained that doctors were present as the Initial Reaction Force forcibly removed these [nasal gastric] tubes by placing a foot on one end of the tube and yanking the detainee’s head back by his hair, causing the tube to be painfully ejected from the detainee’s nose. When the detainees saw this happening, they begged to have the tubes remain, but the guards refused and continued to forcibly remove the tubes. • Immediate release of those determined to be innocent by CSRTs Then, in front of the Guantánamo physicians – including the head of the detainee hospital – the guards took nasal Prisoners on the August 2005 hunger strike made four demands: Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 29 gastric tubes from one detainee, and with no sanitization whatsoever, re-inserted it into the nose of a different detainee. When these tubes were re-inserted, the detainees could see the blood and stomach bile from other detainees remaining on the tubes. A person the detainees only know as “Dr. [name redacted]” stood by and watched these procedures, doing nothing to intervene.228 Yousef, who was a juvenile at the time of capture, relayed that guards told him that a U.S. court had ordered the force-feeding and that was the only reason that he and other prisoners complied with the force-feeding. He was “greatly disturbed,” according to his attorneys, to find out that no such order had been given and that he had been lied to. When his attorneys tried to meet with him a second time, they were told that he had removed his nasal gastric tube and was encouraging other prisoners to do the same.229 The U.S. courts have not addressed the prisoners’ request to ban the use of the emergency restraint chair. In June 2006, the military acknowledged that over eighty prisoners had begun another hunger strike and at least six were swiftly subjected to force-feeding. V. AVOIDING JUDICIAL SCRUTINY OF TORTURE AND CRUEL, INHUMAN, AND DEGRADING TREATMENT “U.S. government officials immobilized the hunger strikers’ heads by strapping them in the restraint chair, restrained their hands, inserted feeding tubes in their noses, and force fed them large bags of liquid nutrients.” The U.S. government has steadfastly declared that the prisoners in Guantánamo are treated humanely, that any isolated incidents of abuse occurred long ago, and the individual soldiers involved reprimanded. The government points to the fact that none of the investigations undertaken so far “found that any governmental policy directed, encouraged or condoned these abuses.”231 The government’s self-serving reliance on the conclusions of its own investigations highlights the urgent need for an The government’s selfindependent investigation of prisIn January 2006, the military subserving reliance on the oner treatment and conditions of jected over thirty prisoners to confinement. The U.S. governconclusions of its own intranasal force-feeding. When sevment has failed to provide the investigations highlights eral prisoners reached a life-threatprisoners with any means to ening stage, the military turned to the urgent need for an address and remedy their allegathe use of an “emergency restraint independent investigation tions of torture and cruel, inhuchair” to immobilize prisoners durof prisoner treatment and man and degrading treatment. ing several hours of force-feeding Neither the military proceedings every day. According to one prison- conditions of confinement. in Guantánamo nor the federal er’s legal challenge to this practice, courts in the United States have the military grossly misused the emergency restraint held the U.S. government accountable for the conduct chair: in Guantánamo or prohibited these practices. As the U.S. government officials immobilized the hunger strikers’ prisoners enter their fifth year of detention, not a single heads by strapping them in the restraint chair, restrained federal habeas hearing has been held to challenge a pristheir hands, inserted feeding tubes in their noses, and force oner’s “enemy combatant” status, and mistreatment in fed them large bags of liquid nutrients. The account further Guantánamo and continued arbitrary confinement. describe hunger strikers bleeding and vomiting from these CSRTs. In June 2004, the U.S. Supreme Court ruled in actions, and urinating and defecating on themselves because Rasul v. Bush that U.S. federal courts have jurisdiction to Respondents had denied them access to a bathroom.230 hear Guantánamo prisoners’ habeas cases. Within a Once the military began using the emergency restraint week, the July 7, 2004 Wolfowitz Order established chair, all but three prisoners ended their hunger strike Combatant Status Review Tribunals (CSRTs) that purdue to the pain and humiliation. ported to provide a process for confirming that each 30 | Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba prisoner correctly had been determined to be an enemy combatant. The CSRTs, however, provided nothing more than an administrative “rubberstamp” of previously made determinations. The CSRTs did not occur until some prisoners had already been in custody for two and one-half years, prisoners were denied access to counsel, and secret evidence frequently formed the basis for the CSRT determinations. Despite complaints raised by numerous prisoners, the CSRTs failed to investigate and remedy allegations that statements obtained under torture or abuse were used against the prisoners by the U.S. military. The government argues . . . that this Court must accept the validity of CSRTs without undertaking factual or evidentiary review. The government does not deny that the CSRTs would be inconsistent with due process if they relied on statements obtained by torture, but simply asserts as a factual matter that the CSRTs did not rely on coerced statements and asked this court to take it at its word.232 Detainee Treatment Act. On June 15, 2005, the U.S. Senate, in response to widespread criticism at home and abroad, including concerns about torture and abuse documented by the FBI,233 opened hearings regarding the Guantánamo prisoners.234 Six months later, Congress passed the Detainee Treatment Act (DTA), which is the first legislation explicitly related to the Guantánamo prisoners. The President signed the DTA into law on December 30, 2005. The DTA expressly prohibits “cruel, inhuman, or degrading treatment” of American captives. However, an amendment introduced by Senators Lindsey Graham, Carl Levin, and Jon Kyl (Graham-Levin-Kyl amendment) deprives courts of the ability to enforce that ban on behalf of Guantánamo prisoners.235 The GrahamLevin-Kyl amendment provides that “no court, justice, or judge shall have jurisdiction to hear or consider” applications for habeas corpus or “any other action against the U.S.” brought by aliens detained at Guantánamo. The Bush Administration has asserted the DTA as a defense against claims of torture by Guantánamo prisoners. In March 2006, Administration lawyers contended in federal court and in legal filings that Mohammed Bawazir, a Yemeni national held since May 2002, cannot claim protection under the Act’s anti-torture provisions because that prohibition does not apply to people held at Guantánamo.236 Bawazir’s attorneys have contended that “extremely painful” new tactics used by the government to force-feed him and end his hunger strike amounted to torture. U.S. District Judge Gladys Kessler said in a hearing on March 2, 2006, that she found allegations of aggressive U.S. military tactics used to break the prisoner hunger strike “extremely disturbing” and possibly against U.S. and international law.237 However, government lawyers argued that even if the tactics did violate the Act’s anti-torture ban, under the DTA, prisoners at Guantánamo have no recourse to challenge that ban in court.238 Perhaps the most hotly contested issue concerning the DTA is whether it applies to deprive the courts of jurisdiction to hear pending habeas cases brought by the Guantánamo prisoners. The U.S. government contends that it does; through the DTA, the government once again is seeking to place prisoners in a legal black hole at Guantánamo, so it may continue its detention operations outside the supervision of U.S. courts. The U.S. Supreme Court’s June 29, 2006, decision in Hamdan v. Rumsfeld unambiguously rejected that position, holding that the DTA does not strip federal court jurisdiction to hear habeas claims in pending cases.239 VI. HAS THE U.S. BEEN COMMITTING TORTURE IN GUANTÁNAMO? Only an independent commission can fully address the nature and extent of the use of torture against Guantánamo prisoners. Yet, the evidence assembled in this report clearly points to a pattern and practice of torture and cruel, inhuman, and degrading treatment that implicates a policy encouraging its use. Given the limitations on access to the prisoners and the extreme conditions at Guantánamo, the facts uncovered thus far demand immediate examination of these most serious allegations. The definitions of torture and cruel, inhuman, and degrading treatment are found in several sources of statutory and treaty law. Foremost is the Convention Against Torture (CAT), which provides a definition of torture, requires state parties not to return a person to a place where he will be subject to torture and prohibits Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 31 the use of statements obtained under torture in legal proceedings.240 The United States was one of the main proponents of the treaty and is a signatory to it. Article 1 of the CAT defines torture as: any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person . . .241 The CAT flatly prohibits torture. The United States also refused to opt into CAT’s individual complaint mechanism that allows individual victims of torture, after exhausting domestic remedies, to file a complaint directly with the Committee Against Torture.248 The United States further declared that CAT was non-self-executing, which means that the United States must pass implementing legislation to codify certain provisions of the treaty. Further, it means that the treaty itself is not an independent basis to bring a lawsuit for violations of its provisions.249 To implement its obligation under CAT to criminalize torture, the United States passed 18 U.S.C. §§ 2340 – 2340A, which makes it a crime for a U.S. national to commit torture outside of the U.S.280 Article 2 provides: 18 U.S.C. §§ 2340-2340A defines “torture” as: No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency may be invoked as a justification of torture.242 an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;251 The United States ratified the CAT in 1994, subject to certain conditions, known as Reservations, Declarations “Severe mental pain and suffering” is further defined as: and Understandings (RUDs).237 For example, the United States limited its obligation under Article 16. Article 16 prolonged mental harm caused by or resulting from – provides that “[e]ach State Party shall undertake to pre(A) the intentional infliction or threatened infliction vent in any territory under its jurisdiction other acts of of severe physical pain or suffering; cruel, inhuman or degrading treatment or punishment (B) the administration or application, or threatened which do not amount to torture as defined in article 1 . administration or application, of . . under color of law.244 The United mind-altering substances or States declared that “cruel, inhuman “No exceptional other procedures calculated to and degrading treatment” be consocircumstances disrupt profoundly the senses or nant with the prohibition of “cruel, whatsoever, whether a unusual and inhumane treatment or the personality; punishment” under the Fifth, Eighth, state of war or a threat of (C) the threat of imminent and/or Fourteenth Amendments of war, internal political death; or the U.S. Constitution.245 It also statinstability or any other (D) the threat that another pered an understanding that torture is son will imminently be subjectpublic emergency may be “an act . . . specifically intended to inflict severe physical or mental pain invoked as a justification ed to death, severe physical pain 246 or suffering, or the administraor suffering.” Finally, because the of torture. ” tion or application of mindCAT did not define “mental pain or altering substances or other suffering,” the United States defined procedures calculated to disrupt profoundly the sensit in terms of its objective causes rather than its subjeces or personality.252 tive qualities. Despite these RUDs the U.S. is bound by its treaty obligations not to engage in torture at any time.247 32 | Plainly, many Guantánamo prisoners report being subject to treatment that falls within these definitions of Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba torture. The appendix included at the end of this report illustrates specific conduct, keyed to the definitions of torture banned by U.S. and binding international law. CCR believes that U.S. government conduct at Guantánamo has resulted in numerous violations of the prohibition against torture and cruel, inhuman and degrading treatment. VII. UNITED NATIONS AND COMMITTEE ON THE CONVENTION AGAINST TORTURE FIND TORTURE COMMITTED AT GUANTÁNAMO Punishment; Freedom of Religion or Belief; and Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health) conducted an in-depth investigation and evaluation of U.S. treatment of Guantánamo prisoners. The investigators reviewed publicly available information and interviewed former Guantánamo prisoners. The investigators were denied the opportunity to interview current prisoners first hand.256 The UN report criticized the United States for denying After eighteen months of Guantánamo prisoners many basic rights and, above all else, personal study, UN investigators After eighteen months of study, liberty.257 The report found that released a report UN investigators released a report interrogation techniques, condicondemning U.S. treatment of condemning U.S. tions of detention, the use of prisoners held at Guantánamo and treatment of prisoners excessive violence, and transfer of concluding that certain practices at held at Guantánamo and prisoners to countries that pose a Guantánamo amounted to serious risk of torture violate the torture.253 The fifty-four page concluding that certain basic human right to be free from report, released on February 16, practices at Guantánamo torture.258 The report criticized the 2006, disclosed an alarming numUnited States for failing to provide amounted to torture. ber of practices at Guantánamo trial by an independent tribunal that violate human rights and and adequate healthcare and for persecuting prisoners international humanitarian treaties and standards to because of their Muslim faith.259 The report concluded which the United States is a party, including the that the United States should close “the Guantánamo International Covenant on Civil and Political Rights detention facilities without further delay.”260 (ICCPR), the CAT, the International Convention on the Elimination of All Forms of The response of world leaders to Racial Discrimination (ICERD), The UN report concluded the UN Report was immediate; and the International Covenant on many called for the closure of that the United States Economic, Social and Cultural Guantánamo, including British should close “the Rights (ICESCR).254 Prime Minister Tony Blair, German Chancellor Angela Guantánamo detention One of the UN’s main human Merkel, UN Secretary-General rights monitoring bodies, the facilities without further Kofi Annan, and Archbishop United Nations High delay.” Desmond Tutu.261 Recently, British Commissioner on Human Rights Attorney General Lord Goldsmith (UNHCHR) first began monitorissued one of the strongest condemnations of the U.S. ing the prisoners’ situation in January 2002.255 After two detention center at Guantánamo to date from a British and one-half years of continued allegations of human government official: rights violations, a group led by five UNHCHR mandate holders (the Chairperson of the Working Group on The existence of Guantánamo remains unacceptable. Arbitrary Detention, and the Special Rapporteurs on the It is time, in my view, that it should close. Not only Independence of Judges and Lawyers; Torture and Other would it, in my personal opinion, be right to close Cruel, Inhuman or Degrading Treatment or Guantánamo as a matter of principle, I believe it A. United Nations Special Rapporteurs’ Report Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 33 would also help to remove what has become a symbol to many – right or wrong – of injustice. The historic tradition of the U.S. as a beacon of freedom, liberty and of justice deserves the removal of this symbol.262 B. United Nations’ Committee Against Torture Report The lesson of this report is that widespread abuses have occurred, are now occurring, and will continue to occur at Guantánamo. The report reveals patterns and systematic practices that implicate not the idiosyncratic predilections of sadistic soldiers and interrogators but policies approved at the highest level of the U.S. government. On May 19, 2006, the United Nations Committee Against Torture, the treaty body charged with monitoring contracting states’ compliance with the CAT, issued a scathing and thorough critique of the U.S. record on torture. The Committee called upon the United States to close all secret prisons, hold both military and civilian senior officials accountable for their role in acquiescing to acts of torture committed by their subordinates, and end its practice of transferring prisoners to countries with known torture records. Of particular note, the Committee expressly rejected the U.S. government’s contention that the CAT did not apply to U.S. personnel acting outside of the U.S. or during wartime, and called for the immediate cessation of the indefinite detention of prisoners at Guantánamo and closure of the facility.263 VIII. CONCLUSION As William H. Taft, former Legal Advisor, Department of State in the George W. Bush Administration, has stated, “How our government treats people should never, at bottom, be a matter merely of policy, but a matter of law.”264 The government’s unilateral decision to abandon our obligations under the Geneva Conventions and international humanitarian and human rights law tarnishes the reputation of the U.S. as a country committed to the rule of law, sets a poor example for other nations, gives human rights abusing regimes justification to follow suit, and endangers U.S. troops abroad. Fundamentally, these practices cause substantial physical and psychological injury to the men imprisoned in 34 | Guantánamo and have a ripple effect upon the lives of the men’s families throughout the world. The lesson of this report is that widespread abuses have occurred, are now occurring, and will continue to occur at Guantánamo. The report reveals patterns and systematic practices that implicate not the idiosyncratic predilections of sadistic soldiers and interrogators but policies approved at the highest level of the U.S. government. Independent and transparent investigation into the sources and planning of these practices is a pre-requisite to answering the query: how could these abuses occur and how can they be stopped? The abuses easily can give rise to rage and resentment in the Muslim world and elsewhere. The alleged use of religious and cultural abuse at Guantánamo, if not condemned in the strongest terms, may validate Muslim concerns that the United States is hostile to the religion of Islam. How the United States is treating prisoners in the “war on terrorism” should be the subject of a searching and self-reflective national debate. Investigations conducted to date – largely by DoD itself – have failed to hold accountable those responsible for implicitly or explicitly authorizing torture and cruel, inhuman and degrading treatment at Guantánamo.265 This atmosphere of impunity only deepens the fear and psychological trauma of the prisoners. The United States is violating the human rights of Guantánamo prisoners by holding them indefinitely without charge and without a fair process for determining whether their imprisonment is lawful. The accounts of torture and cruel, inhuman, and degrading treatment presented in this report show that the prisoners are subject to countless acts of mistreatment and abuse, both in interrogation and as part of their daily lives at Guantánamo. Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba All mistreatment of Guantánamo prisoners must immediately end. CCR calls on Congress to take all necessary steps to appoint an independent bipartisan commission, modeled on the 9/11 Commission, to investigate thoroughly all incidents of torture and abuse at Guantánamo and other detention facilities and to analyze the nature and extent of such practices. This commission should also be charged with holding government officials accountable who have violated domestic and international law in allowing these abuses to occur and with making specific policy recommendations designed to prevent any such abuses in the future. 35 | Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba APPENDIX PRACTICES THAT RISE TO THE LEVEL OF TORTURE AT GUANTÁNAMO The definitions in both the CAT and U.S. statute define the following practices, which routinely occur at Guantánamo, as torture. PRACTICES PRISONER ASSERTIONS “PHYSICAL PAIN OR SUFFERING” • David Hicks was beaten during interrogations and interrogated at gunpoint.266 • IRF incidents, such as assaults on Messrs. Al-Laithi and Al Dosari.267 “SEVERE MENTAL PAIN AND SUFFERING” defined as “prolonged mental harm caused by or resulting from“(A) the intentional infliction or threatened infliction of severe physical pain or suffering; • IRF incidents, such as assaults on Messrs. Ait Idir and Al-Shehri.268 “(B) the administration or application, or threatened dministration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; • David Hicks was injected with unknown medications and struck while under the influence of sedations that were forced upon him.269 • O.K. has found partially dissolved tablets and/or powder in the bottom of a glass given to him by his captors. The pills produce various effects: sleepiness, dizziness, alertness.270 • Mr. Abd al-Malik al-Wahab states that detainees deemed uncooperative are injected with heavy tranquilizers that sedate them for a month and leave some addicted.271 • Other prisoners have had teeth broken for refusing injections, and then as punishment they are sedated. 272 • Instance of prolonged sleep deprivation, as reported by Messrs. Al-Qahtani, Boumediene, and Nechla.273 • Instances of prolonged solitary confinement, as reported by Messrs. Lahmar and Bensayah.274 36 | Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba PRACTICES PRISONER ASSERTIONS “(C) the threat of imminent death; or • Mr. Abd al-Malik al-Wahab was threatened with torture and execution.275 • Moazzam Begg was threatened with summary trial and execution.276 • In Afghanistan, an MP loaded a rifle and aimed it at Murat Kurnaz’s head.277 “(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.” • Mr. Abd al-Malik al-Wahab was sleep deprived and forced to spend long hours in cold temperatures, while threatened with torture and execution and told harm would befall his family.278 • A female soldier informed Mr. Al Noaimi that she was from Virginia and had learned he had family members there. She threatened to kill them.279 Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 37 Chronology of Events September 11, 2001 Al Qaeda attacks the United States. September 18, 2001 Congress passes the AUMF. October 7, 2001 Ground war in Afghanistan begins. November 13, 2001 President Bush authorizes trials by military commission. December 27, 2001 Defense Secretary Rumsfeld announces plan to send prisoners to GTMO. December 28, 2001 Legal advisors inform President Bush GTMO is probably beyond reach of federal courts. January 6, 2002 Construction of temporary facility, Camp X-Ray, begins; first troops [JTF-160] arrive at GTMO. January 9, 2002 Legal advisors inform William Haynes, Defense Department General Counsel, laws of war do not restrain President Bush, and Geneva Conventions do not protect prisoners seized during war on terror. January 11, 2002 First planeload of 20 prisoners arrives at Camp X-Ray. February 7, 2002 President declares Geneva Conventions do not apply to AQ, and Taliban fighters are not eligible for POW status. February 18, 2002 U.S. Southern Command authorizes JTF-170 to conduct interrogations at GTMO. February 19, 2002 Habeas litigation on behalf of GTMO prisoners commences. February 27, 2002 Camp Delta expansion begins; prisoners begin first hunger strike. April 5, 2002 First prisoner released from GTMO. April 29, 2002 Prisoner transfer to Camp Delta completed; Camp X-Ray closed. Summer 2002 Gen. Jack Keane, Vice Chief of Staff for the U.S. Army, visits GTMO; finds quality of intelligence gathered unsatisfactory; recommends intelligence and military functions be combined under unified command. August 1, 2002 President Bush’s legal advisors narrow definition of torture and conclude President Bush, as Commander in Chief, can authorize any interrogation technique, even if contrary to domestic statute against torture. October 9, 2002 Brig. Gen. Rick Baccus leaves GTMO after being relieved of his duties as commander. October 11, 2002 Maj. Gen. Michael Dunlavey, head of interrogations at GTMO, requests permission to use tougher interrogation techniques. November 4, 2002 Maj. Gen. Geoffrey Miller takes over command at GTMO; JTF-160 and JTF-170 merge to form JTF- GTMO. December 2, 2002 Rumsfeld formally approves use of coercive interrogation techniques, including stress positions; deprivation of light and auditory stimuli; isolation up to 30 days; hooding; forced grooming; removal of clothing; removal of comfort items (including religious items). December 2002 Navy officials threaten to pull Navy interrogators out of GTMO after chief Navy psychologist calls the techniques used “abusive” and “coercive.” January 15, 2003 Rumsfeld rescinds 12/2/02 approval of coercive interrogation techniques and orders a working group to assess legal, policy, and operational issues relating to interrogations. April 2, 2003 Medium-security prison completed. April 4, 2003 Working Group on Detainee Interrogations issues final report recommending use of 35 interrogation techniques, including 9 to be used only subject to limits, including whether prisoner is “medically and operationally evaluated as suitable.” April 16, 2003 Rumsfeld approves 24 techniques and requires prior authorization for coercive techniques. April 22, 2003 Department of Defense independent contractor reports witnessing MPs slamming prisoner violently into floor. May 2, 2003 Maj. Gen. Miller discontinues use of “fear up” techniques. July 3, 2003 Military commissions process commences. Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 38 August 18-26, 2003 23 prisoners undertake mass suicide attempt to protest Koran abuse; military does not confirm until January 24, 2005. August 31 – September 9, 2003 Miller sent to Iraq to review interrogation and prison operations; conducts assessment using JTFGTMO procedures and interrogation authorities as baseline. March 24, 2004 Brig. Gen. Jay Hood assumes command at GTMO. April 2004 Construction of Camp Five completed. June 28, 2004 Supreme Court holds in Rasul v. Bush that GTMO prisoners are entitled to a hearing on the merits of their habeas claims in U.S. federal court. June 28, 2004 Supreme Court holds in Hamdi v. Rumsfeld that alleged enemy combatants entitled to minimum due process rights. July 7, 2004 Deputy Secretary of Defense Wolfowitz establishes Combatant Status Review Tribunals (CSRTs) July 26, 2004 3 released British prisoners issue lengthy statement accusing United States of severe mistreatment. July 31, 2004 13 habeas petitions, representing 60 prisoners, pending in federal court. August 31, 2004 First habeas counsel visits base. October 4, 2004 Government moves to dismiss habeas cases arguing prisoners have no rights. December 20, 2004 ACLU releases FBI e-mails concerning torture and abuse during interrogations. January 11, 2005 Government announces Australian Mamdouh Habib will be released, five days after his allegations of torture are made public in court proceedings. January 19, 2005 Judge Leon rules prisoners have no constitutional rights and dismisses two habeas cases. January 26, 2005 Prisoner Habib freed and returned to Australia. January 31, 2005 Judge Green rules prisoners have constitutional rights, and CSRTs violate due process. February 9, 2005 Government notices appeal of Judge Green’s ruling. February 22, 2005 Petitioners notice appeal of Judge Leon’s ruling. June 3, 2005 Brig. Gen. Hood concludes inquiry on Koran abuse at GTMO. June 9, 2005 Pentagon releases “Schmidt Report” on interrogations at GTMO confirming most FBI allegations of abuse, concluding interrogation of Mohammed al Qahtani was “abusive and degrading,” and recommending reprimand of Maj. Gen. Geoffrey Miller for failing to supervise the interrogation. Recommendation overruled by General Bantz Craddock, Commander of the U.S. Southern Command. Late June 2005 Hunger strike begins. July 28, 2005 Prison officials agree to bring GTMO into compliance with Geneva Conventions; hunger strike ends. August 8, 2005 Hunger strike resumes when GTMO officials fail to honor agreement with prisoners and place prisoners’ representatives in segregation. September 8, 2005 Oral Argument before DC Court of Appeals in consolidated Green/Leon appeals. November 7, 2005 Supreme Court decides to rule on the constitutionality of the military commissions process in Hamdan v. Rumsfeld. November 10, 2005 Senate passes amendment by Senator Lindsey Graham stripping the federal courts of jurisdiction to hear habeas petitions. December 21, 2005 Congress passes a compromise amendment sponsored by Senators Graham, Levin, and Kyl and an amendment sponsored by Senator McCain, banning cruel, inhuman, and degrading treatment of anyone in United States custody. December 30, 2005 President Bush signs into law the Graham-Levin-Kyl and McCain amendments, together known as the Detainee Treatment Act of 2005, with qualification that he will construe the McCain amendment “in a manner consistent with constitutional authority of the President . . . as Commander in Chief.” 39 | Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba Glossary ACLU – American Civil Liberties Union ACS Defense – an independent defense contractor working with the Department of Defense. Abu Ghraib – prison in Iraq where American soldiers abused imprisoned Iraqis. Al Qaeda – terrorist group headed by Osama Bin Laden that attacked the U.S. on September 11, 2001. Enemy Combatant – in general, the government’s term for persons not belonging to the regular army of any nation who allegedly have harmed, or intend to harm, U.S. persons or interests. The government’s definition of the term has been inconsistent since 2002. It was most recently and broadly re-defined in Secretary of Defense Paul Wolfowitz’s order establishing the Combat Atatus Review Tribunals (CSRTs). Article 17 – article of Third Geneva Convention prohibiting torture and coercion during interrogation of prisoners of war. Eric Saar – former soldier in military intelligence at Guantanamo. BSCT – Behavioral Science Consultation Team. FM 34-52 – Field Manual 34-52; army guidelines on interrogation. Bagram – as used in this report, U.S. Air Force Base in Afghanistan. CA3 – Common Article Three of the Geneva Conventions, providing for a baseline of humane treatment for any person detained during military conflict. CAT – Convention Against Torture; international treaty U.S. has signed prohibiting torture and cruel, inhuman, and degrading treatment of persons in custody. FBI – Federal Bureau of Investigation. FOIA – Freedom of Information Act. Geneva Conventions – international humanitarian treaties signed in 1949, in part successors to the Hague Convention, codifying the laws of war regarding treatment of captured persons. George W. Bush – President of the United States. CIA – Central Intelligence Agency. GTMO (or Gitmo) – acronym for Guantánamo Bay, Cuba. Camp Echo – special prison at GTMO housing prisoners to be tried before military commissions if the Supreme Court finds the military commissions process constitutional. Habeas corpus – fundamental right requiring the Executive to demonstrate the legal grounds for imprisoning a person; empowers courts to order release if detention is unlawful. Camp Delta – main prison at GTMO; Camp Delta includes Camps 1-4. Hamdi v. Rumsfeld – Supreme Court decision holding that a U.S. citizen “enemy combatant” has right of due process. Camp Five – maximum security prison at GTMO. Camps 1-4 – (see Camp Delta). Camp X-Ray – original, temporary facility composed of wire cages for GTMO prisoners. Hunger strike – refusal to take in nourishment, often undertaken by prisoners to protest detention or conditions. ICE – Interrogation Control Element. DoD – Department of Defense. Detainee – government’s term for prisoners held indefinitely at GTMO. Interrogation – formal process of questioning prisoners for information, in the past conducted according to Army Field Manual 34-52 guidelines. Detainee Levels 1-4 – government designation of detainees based on level of cooperation with military, 1 being most cooperative, 4 being least. IRF – Immediate Reaction Force (sometimes referred to as “Extreme Reaction Force”), team of military guards trained to respond to disturbances with force. Donald Rumsfeld – Secretary of Defense. 40 | Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba IRF’d – GTMO slang for being “worked over” by the IRF. Reservation – (see interrogation) military slang for interrogation. JTF-GTMO -- Joint Task Force, Guantánamo; name of military task force in charge of overseeing detention and interrogation operations in GTMO; joint because it is composed of units from the different armed services . Sensory deprivation – coercive interrogation technique involving isolation. James Yee – former Muslim chaplain at GTMO; accused of spying for Al Qaeda and later exonerated. Koran (or Qu’ran) – Muslim holy book. KUBARK – CIA cryptonym (code name) for CIA itself. Kandahar – as used in this report, U.S. Air Force Base in Southern Afghanistan. MP – military police. NG – nasal-gastric; tubes used for force-feeding hunger strikers. NLEC – No Longer Enemy Combatant; a status classification assigned to prisoners whose CSRTs determined them not to be enemy combatants. PHR – Physicians for Human Rights. POW, PW – prisoner of war. Paul Wolfowitz – former Deputy Secretary of Defense (see Wolfowitz Order). Prisoner – detainee whose detention is potentially indefinite. Short-shackling – stress position in which a prisoner’s arms and legs are shackled together and to the ground, forcing him into a stooped position. Sleep deprivation – coercive interrogation technique usually accomplished through use of light and sound disturbances or by moving the prisoner repeatedly from cell to cell during the night. Solitary confinement – isolation of prisoner as form of extreme interrogation technique. Taliban – conservative Muslim political-religious group controlling government of Afghanistan when Al Qaeda attacked the U.S. Qu’ran (see Koran). War Crimes Act – U.S. law making certain violations of Geneva Conventions a criminal offense. Wolfowitz Order – directive from Deputy Secretary of Defense Wolfowitz on July 7, 2004 that established CSRT process and defined “enemy combatant” in broad terms; set down just two weeks after the Supreme Court’s decision in Rasul v. Bush that federal courts consider prisoners’ claims. Rasul v. Bush – Supreme Court decision holding that writ of habeas corpus extends to prisoners in Department of Defense custody at GTMO and that prisoners are entitled to a hearing on the merits of their claims. Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 41 1 Robert Kirsch, Unclassified Attorney Notes Regarding Hadj Boudella (on file with author) (statement made by U.S. military intelligence officers to prisoner Hadj Boudella). 2 See Cecili Thompson Williams & Kristine A. Huskey, Detention, Interrogation, and Torture at Guantánamo Bay: Materials and Case Files (Oct. 2005) [hereinafter Shearman Sterling Report] (on file with author). 3 ACLU v. Dep’t of Def. 406 F.Supp.2d 330 (S.D.N.Y. 2005). Documents produced as a result of this litigation will be referred to as “FOIA Documents.” 4 See ERIC SAAR & VIVECA NOVAK, INSIDE THE WIRE: A MILITARY INTELLIGENCE SOLDIER’S EYEWITNESS ACCOUNT OF LIFE AT GUANTÁNAMO (2005). 5 JAMES YEE & AIMEE MOLLOY, FOR GOD AND COUNTRY: FAITH AND PATRIOTISM UNDER FIRE (2005). For a review, see Joseph Lelyveld, The Strange Case of Chaplain Yee, N.Y. REV. OF BOOKS, Dec. 15, 2005, available at www.nybooks.com/articles/18550 (last visited June 20, 2006). The formal charges against Mr. Yee included mishandling of classified documents and adultery. 6 The United States originally acquired Guantánamo in 1898 when it militarily occupied Cuba during the Spanish-American War. When Cuba became independent in 1903, the United States was “granted” a perpetual lease on the land occupied by the Base. The terms of the treaty provided that the United States “shall exercise complete jurisdiction and control,” while Cuba retains “ultimate sovereignty.” Lease of Lands for Coaling and Naval Stations, art. III, T.S. 418. A subsequent treaty in 1934 continued the terms of the lease agreement signed in 1903 and provided that “[s]o long as the United States of America shall not abandon the said naval station of Guantánamo or the two Governments shall not agree to a modification of its present limits,” the arrangement could continue. Treaty Between the United States of America and Cuba Defining Their Relations art. 3, U.S.-Cuba, May 29, 1934, 48 Stat. 1682 (1934). 7 See Press Release, U.S. Dep’t of Def., Office of Public Affairs Detainee Transfer Announced (May 18, 2006) available at http://www.defenselink.mil/releases/2006/nr20060518-13076.html (last visited June 20, 2006). 8 MAGNA CARTA [CONSTITUTION], paras. 38-39 (Eng.); U.S. CONST. art. 1, § 9, cl.2. 9 See 10 28 id. U.S.C. § 2241(c)(1)(c)(3). 11 542 U.S. 466 (2004). The litigation before the Supreme Court involved two consolidated cases; Rasul v. Bush, No. 03-334, was spearheaded by Joseph Margulies and the Center for Constitutional Rights and Al Odah v. United States, No. 03-343, by the law firm of Shearman and Sterling. Anticipating the litigation culminating in Rasul v. Bush in December 2001, the DoD asked the Department of Justice (DOJ) for its legal opinion concerning the question of whether federal courts would have jurisdiction to hear habeas petitions from aliens held at Guantánamo. See Memorandum from Patrick F. Philbin, Deputy Assistant Att’y Gen. Dep’t of Justice & John Yoo, Deputy Assistant Att’y Gen. Dep’t of Justice, to William J. Haynes II, General Counsel, Dep’t of Def. (Dec. 28, 2001), in THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB 29 (Karen J. Greenberg & Joshua L. Dratel eds., 2005) [hereinafter THE TORTURE PAPER] (concluding federal courts probably could not assert jurisdiction but some litigation risk existed). 42 | 12 Al Odah v. United States, 346 F. Supp.2d 1 (D.D.C. 2004). 13 Mark Huband, U.S. Officer Predicts Guantánamo Releases, FIN. TIMES (LONDON), Oct. 4, 2004. 14 Samara Kalk Derby, How Expert Gets Detainees to Talk THE CAPITAL TIMES (Madison, Wis.), Aug. 16, 2004, at 1A; see also SAAR, supra note 4, at 149 (“From what I was seeing in the files . . . detainees with valuable information weren’t the norm. I was amazed that some of the files I was looking at were so thin – sometimes just a mug shot, an ID number from Bagram, and a summary of the detainee’s initial interrogation, which might say that he had maintained he was a farmer, that he denied any connection to terrorism, and claimed to have been picked up by the Northern Alliance or the Pakistanis.”). 15 Christopher Cooper, Detention Plan: In Guantánamo, Prisoners Languish in a Sea of Red Tape, WALL ST. J., Jan. 26, 2005. 16 See infra Part I.A (discussing study of the Combatant Status Review Tribunals’ records). 17 For a selection of statements made by U.S. officials in early 2002 about the prisoners in Guantánamo, see DAVID ROSE, GUANTÁNAMO: THE WAR ON HUMAN RIGHTS 8 (2004) quoting Vice-President Dick Cheney: “These are the worst of a very bad lot. They are very dangerous. They are devoted to killing millions of Americans, innocent Americans, if they can, and they are perfectly prepared to die in the effort” Cheney’s remarks were made on Fox News Sunday, Fox News, Transcript: Cheney on Guantánamo Detainees (Jan. 27, 2002), available at http://www.foxnews.com/story/0,2933,44082,00.html (last visited June 20, 2006). 18 The excerpt from the Al Qaeda training manual posted on the DOJ website does call for torture to be brought to the attention of the court if a “brother” is on trial. It does not instruct members to make up allegations of torture but appears to assume that torture will occur as a matter of course, perhaps because terrorism suspects were likely to be handed over to human rights abusing regimes where prisoners are routinely tortured. See Al Qaeda Training Manual, Lesson Eighteen, available at www.fas.org/irp/world/para/manualpart1.html (last visited June 20, 2006). 19 Jane Mayer, The Memo, NEW YORKER (Feb. 27, 2006), available at http://www.newyorker.com/fact/content/articles/060227fa_fact (last visited June 20, 2006). The original memo is available at http://www.newyorker.com/images/pdfs/moramemo.pdf (last visited June 20, 2006). 20 See, e.g., Memorandum from Maj. Gen. Jack L. Rives, Deputy Judge Advocate General of the U.S. Air Force, on Final Report and Recommendations of the Working Group to Assess the Legal, Policy and Operational Issues Relating to Interrogation of Detainees Held by the U.S. Armed Forces in the War on Terrorism (Feb. 5, 2003) (on file with author). This memorandum was made public by Senator Lindsey Graham on July 25, 2005. 21 Decision and Order of the Supreme Court of the Federation of Bosnia and Herzegovina, No. Ki-1001/01 (Sarajevo, Jan. 17, 2002) (emphasis supplied). [The] Office of Federal [sic] prosecutor has with document no. KT-115/01 from 17 January 2002 informed [the] investigative judge that [his] opinion is that there are no further reasons or circumstances based upon which this measure for ensuring [the] presence of [the] accused in criminal procedure was ordered. Therefore[,] the measure of the detention can be terminated to all accused persons and they can be released from detention. Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba Reviewing [the] suggestion of [the] Deputy Federal prosecutor and [the] status of [the] investigation [sic] case, [the] investigative judge agreed with this suggestion and since the reasons based upon which [the] detention was ordered and extended, article 189, para [.] 1 and 2 of the Law on Criminal Procedure, do not exist any more, it has been decided as in declaration of this decision. In 2004, the Federal Prosecutor dropped all charges related to the alleged plot and closed the criminal investigation. See Letter from Zdravko Knezevic, Federal Chief Prosecutor, to UN High Commission for Human Rights (Nov. 8, 2004) (on file with author). 22 Documents produced by the U.S. government in FOIA litigation have subsequently confirmed that the plane took off from the Tuzla Air Force base in Bosnia and landed at the U.S. Air Force base at Incirlik, Turkey, en route to Guantánamo. FOIA Documents 35063562 (on file with the author). 23 Melissa Hoffer, Unclassified Attorney Notes Regarding Mohammed Nechla (on file with author). 24 O.K. v. Bush, 377 F. Supp.2d 102, 103 (D.D.C. 2005). 25 Exhibit A to Motion for Preliminary Injunction at 4, O.K. v. Bush, 377 F. Supp.2d (D.D.C. 2005) (No. 04-1136). 26 Robert Kirsch, unclassified attorney notes regarding Mustafa Ait Idir (on file with author). 27 See, e.g., Ex Parte Quirin, 317 U.S. 1 (1942); Madsen v. Kinsella, 343 U.S. 341 (1952). 28 Hamdi v. Rumsfeld, 542 U.S. 507, 516 (2004). 29 Compare News Briefing on Military Commission by Donald H. Rumsfeld, Sec’y of Def., Gen. Peter Pace, Vice Chairman, Joint Chiefs of Staff, Douglas Feith, Under Sec’y of Def., and William J. Haynes II, General Counsel of the Dep’t of Def. (March 21, 2002), http://www.defenselink.mil/transcripts/2002/t03212002_t0321sd.htm l (last visited June 23, 2006) (Guantánamo prisoners are “enemy combatants that we captured on the battlefield seeking to harm U.S. soldiers or allies”), with Memorandum from William J. Haynes II, General Counsel, Dep’t of Def., to Members of the ASIL-CFR Roundtable (Dec. 12, 2002), http://www.cfr.org/pub5312/william_j_haynes/enemy_combatants.ph p# (last visited June 23, 2006) (“An ‘enemy combatant’ is an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict. In the current conflict with al Qaida [sic] and the Taliban, the term includes a member, agent, or associate of al Qaida or the Taliban”) (emphasis added). 30 Memorandum to the Sec’y of the Navy from Paul Wolfowitz, Deputy Sec’y of Def. (Jul. 7, 2004), http://www.defenselink.mil/news/Jul2004/d20040707review.pdf (last visited June 23, 2006). 31 Transcript of Oral Argument at 25-26, In re Guantánamo Detainee Cases, 355 F. Supp.2d 443 (D.D.C. 2005) (Nos. 02-CV-0299, et al.). At that hearing, counsel for the government also admitted that the definition was broad enough to include “a resident of Dublin, England [sic] who teaches English to the son of a person the CIA knows to be a member of Al-Qaeda,” or “a Wall Street Journal reporter, working in Afghanistan, who knows the exact location of Osama bin Laden but does not reveal it to the U.S. government in order to protect her source.” Id. at 27, 29-30. 32 Transcript, ABC NEWS, 20/20, Guantánamo, June 25, 2004, at 2 [hereinafter ABC News] (on file with author). 33 Rasul v. Bush, Nos. 03-334 & 03-343, slip op. at 3 n.4 (D.C. Cir. June 28, 2004). 34 Motion for a Preliminary Injunction Barring the Government from Rendering Sami Al-Laithi to Egypt to Face Persecution, or Revealing to the Egyptian Government Additional Facts Concerning His Opposition to the Repressive and Undemocratic Regime of Hosni Mubarak at 5, Sliti v. Bush, (D.D.C. 2005). 35 Id. at 2-3. 36 See, e.g., Nancy Gibbs with Viveca Novak, Inside “The Wire” Security breaches. Suicidal detainees. A legal challenge heading to the Supreme Court. Welcome to Guantánamo, TIME December 8, 2003, at 40. (“U.S. officials concluded that some detainees were there because they had been kidnapped by Afghan warlords and sold for the bounty the U.S. was offering for al-Qaeda and Taliban fighters. ‘Many would not have been detained under the normal rules of engagement,’ the source concedes”). 37 ABC NEWS, supra note 32 at 13. 38 Id. Lt. Col. Christino has also said that President Bush and Secretary Rumsfeld have “wildly exaggerated” the intelligence value of Guantánamo prisoners and that the “screening process” in Afghanistan for deciding which prisoners to send to Guantánamo was “hopelessly flawed from the get-go.” Martin Bright, Guantánamo Has ‘Failed to Prevent Terror Attacks,’ OBSERVER (U.K.), Oct. 3, 2004, available at http://observer.guardian.co.uk/uk_news/story/0,6903,1318633,00.htm l (last visited June 23, 2006). 39 Based on government figures, CCR estimates this was the peak number. See Press Release, U.S. Dep’t of Def., Transfer of Guantánamo Detainees Complete (Nov. 24, 2003), http://www.defenselink.mil/releases/2003/nr20031124-0685.html (last visited June 23, 2006). As of October 1, 2005, the total number of men who have ever been detained in GTMO according to DoD figures was approximately 752. See Press Release, U.S. Dep’t of Def., Detainee Transfer Announced (Oct. 1, 2005), http://www.defenselink.mil/releases/2005/nr20051001-4826.html (last visited June 23, 2006). The United States has made it difficult, if not impossible, to compile accurate statistics about the number of individuals detained in Guantánamo. The DoD and other agencies have refused to release publicly the name, citizenship, or place of seizure of anyone in Guantánamo. It is only through sporadic letters from prisoners to their families and meetings between prisoners and their habeas attorneys that any specific details about the prisoners are made public. The DoD limits its public statements to the approximate number of prisoners detained at any given time. However, as a result of a lawsuit brought by the Associated Press, the DoD released two list of names: the first was of all Guantánamo prisoners who were the subjects of Combatant Status Review Tribunals. This included approximately 560 names. The second was a list of all persons ever incarcerated on Guantánamo. It included over 700 names. The absolute reliability of these two lists is not known. Even less information is available about the Central Intelligence Agency’s (CIA) activity at Guantánamo. The CIA has refused to confirm or deny allegations that at Guantánamo it was holding individuals as “ghost” prisoners, or prisoners unlisted on any prisoner records, and it has denied access to International Committee of the Red Cross inspectors. John Hendren & Mark Mazzetti, Pentagon Reportedly Aimed to Hold Detainees in Secret, L.A. TIMES, July 9, 2004 (noting that only prisoners in DoD custody are required, under the Wolfowitz Order, to have yearly reviews of their status). 40 See, e.g., SEYMOUR M. HERSH, CHAIN OF COMMAND: THE ROAD FROM 9/11 TO ABU GHRAIB 1-20 (2004); Josh Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 43 White, Abu Ghraib Tactics Were First Used at Guantánamo, WASH. POST, July 14, 2005, at A1. 41 See Col. Daniel F. McCallum, Why GTMO? 6, available at http://www/justicescholars.org/pegc/archive/Journals/McCallum_why_ gtmo.pdf (last visited June 25, 2006). 42 The two most notorious discussions were addressed to Alberto R. Gonzales, Counsel to the President. 9 Memorandum from Jay S. Bybee, Assistant Att’y Gen., U.S. Dep’t of Justice, to Alberto R. Gonzales, Counsel to the President (Aug. 1, 2002), in THE TORTURE PAPERS, supra note 11, at 172; Letter from John C. Yoo, Deputy Assistant Att’y Gen., U.S. Dep’t of Justice, Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President (Aug. 1, 2002), in id. at 218. 43 “Extraordinary rendition” refers to transferring a prisoner without legal process to another country for interrogation, often where the transferee country has a dubious human rights record. See, e.g., Jane Mayer, Outsourcing Torture, NEW YORKER, Feb. 14, 2005, available at http://newyorker.com/printables/facts/050214fa_fact6 (last visited June 23, 2006). 44 This 54 Id. arts. 13, 17, 18 & 19. 55 Id. arts. 99-108. 56 Id. arts. 8-11. 57 Id. art. 15. 58 Id. arts. 99 and 103-07 guarantee the rights not to be tried or sentenced for acts not forbidden by law at the time; not to give coerced confessions; the right to a defense and to assistance of a qualified advocate or counsel; the right to a speedy trial; limits on pretrial confinement; timely notice of charges; the right to call witnesses; the right to an interpreter if necessary; the right to private communications between advocate or counsel and the accused; and the right of appeal in the same manner as for members of the armed forces of the detaining power. Id. arts. 99, 103-107. 59 Geneva Convention (No. IV) Relative to the Protection of Civilian Persons in Time of Warrant art. 4, Aug. 12, 1949. 60 Id. art 5. 61 GC III, supra note 51, art. 17. was Mohammed al-Qahtani, the alleged twentieth hijacker. See Adam Zagorin & Michael Duffy, Inside the Interrogation of Detainee 063, TIME, June 20, 2005. It appears that Mr. al-Qahtani nearly died while undergoing interrogation in early December 2002. His heart rate slowed to 35 beats per minute and he was taken to the military hospital for a CT scan and stabilizing. For this story, Time obtained a leaked copy of the interrogation log for al-Qahtani. Personal communication from Adam Zagorin. This was not the first time al-Qahtani had been taken to the hospital during his interrogations. Gitanjali Gutierrez, Unclassified Attorney Notes (on file with author). 64 CA3 provides that “[p]ersons taking no active part in the hostilities, including. . . those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria” (emphasis added). E.G., G.C III, supra note 51, art. 3(1). 45 Josh 65 Id. art. 3(1)(a),(c)-(d). 66 Id. art. 3(2). 62 Id. 63 Id. White, Guantánamo Desperation Seen in Suicide Attempts, WASH. POST, Nov. 1, 2005, at A1 (recounting suicide attempt two weeks earlier and quoting Lt. Col. Jeremy Martin, spokesman for Joint Task Force Guantánamo, on the total number of attempts (36 by 22 different prisoners)). The government’s estimates have not been independently corroborated. include the International Covenant on Civil and Political Rights, the Convention Against Torture, and the Convention Against All Forms of Racial Discrimination. 46 See 68 JOSEPH Center for Constitutional Rights, The Guantánamo Prisoner Hunger Strikes & Protests: February 2002 – August 2005, September 2005, available at http://www.ccrny.org/v2/legal/september_11th/docs/Gitmo_Hunger_Strike_Report_ Sept_2005.pdf (last visited June 23, 2006). 47 See infra Part IV (detailing treatment of prisoners during hunger strike). 48 See id. 49 Guantánamo Bay Detainee Statements, Jum’ah Mohammed AbdulLatif Al Dossari, Isa Ali Abdulla Al Murbati, Abdullah Al Noaimi and Adel Kamel Abdulla Haji 5 (May 2005) (Joshua Colangelo-Bryan) [hereinafter Guantánamo prisoner Statements]. 50 See International Committee of the Red Cross (ICRC), 1949 Conventions & Additional Protocols, http://www.icrc.org/ihl.nsf/CONVPRES?OpenView (last visited June 25, 2006). 51 Geneva Convention (no. III) relative to the treatment of prisoners of war, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GC III] 52 See International Committee of the Red Cross, supra note 50. 53 See GC III, supra note 51, art. 5. 44 | 67 These MARGULIES, Guantánamo and the Abuse of Presidential power (2006). 69 U.S. Army, Field Manual 34-52: Intelligence Interrogation at iv.-v. (1992) [hereafter FM 34-52] (“These principles and techniques of interrogation are to be used within the constraints established by the following: . . . Geneva Convention for the Amelioration of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, . . . Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, . . . Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949…”). 70 Id. at 3-14 to 3-17. 71 Id. 72 Id. at 3-18 to 3-19. Other techniques in FM 34-52 include both psychological ruses and varied forms of questioning: “We Know All” (appearing to know everything a source might be concealing); “File and Dossier” (appearing to have all information about a source); “Establish Your Identity” (convincing the source you have mistaken him for someone else); “Repetition” (repeating a question over and over again); “Rapid Fire” (interrupting the source with unrelated questions); “Silent” (maintaining eye contact while not speaking); “Change of Scene” (getting source away from atmosphere of interrogation room). Id. at 3-19 to 3-20. Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba 73 Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations, Draft (Mar. 6, 2003), in THE TORTURE PAPERS, supra note 11, at 241, 285. 74 Id. 75 FM 34-52, supra note 69, at 1-9 (emphasis added). 76 Capt. Ian Fishback, Op-Ed, A Matter of Honor, WASH. POST, Sept. 28, 2005, at A21; see also SAAR, supra note 4, at 225 (“[I]f we felt queasy about what was happening, it wasn’t because we thought we were breaking any rules. That Geneva Convention meeting had blurred all the lines”). 77 Eric Schmitt, Pentagon Rethinking Manual with Interrogation Methods, N.Y. Times, June 14, 2006. 78 Motion for a Preliminary Injunction Concerning Conditions of Confinement at 17, Sliti v. Bush (D.D.C. 2005) (No. 05-CV-429) (citing Unclassified Memorandum re: Omar Deghayes (July 19, 2005), at 3-4). 79 18 U.S.C. § 2441. The statute also criminalizes violations of certain other treaties related to the laws of war. See 18 U.S.C. § 2441(c)(2). 80 18 U.S.C. § 2441(c)(1). 81 GC 82 18 III, supra note 51, art. 130. U.S.C. § 2441(c)(3). 83 Letter from John Ashcroft, Att’y Gen. to George W. Bush, President (Feb. 1, 2002), in THE TORTURE PAPERS, supra note 11, at 126, available at http://news.findlaw.com/wp/docs/torture/jash20102ltr.html (last visited June 23, 2006). June 23, 2006). 91 Hamdan v. Rumsfeld, -S.Ct. - , 2006 WL1764793 at *7-11. 92 Walter Dellinger, A Supreme Court Conversation, SLATE, http://www.slate.com/id/244476/entry/2144826/ (last visited July 5, 2006). 93 Guantánamo 94 Ted Conover, In the Land of Guantánamo, N.Y. TIMES, June 29, 2003. 95 Id. 96 See ROSE, supra note 17 at 54-55 (comparing the GTMO that reporters see with a “Potemkin” village). 97 See U.S. Army, Joint Task Force Guantánamo Bay Press Kit Commissions [hereinafter JTF-GTMO Press Kit], available at www.defenselink/mil/news/Aug2004/d20040818PK.pdf. 98 Id. 99 Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 152, 172 (D.D.C. 2004). 100 JTF-GTMO youngest prisoner detained at Guantánamo was approximately ten-years-old. Alex Belida, 3 Afghan Children Released from Guantánamo Bay Detention Camp, VOICE OF AMERICA NEWS, http://www.globalsecurity.org/security/library/news/2004/01/sec040129-voa03.htm. 102 Conover, supra note 94 (“The juvenile enemy combatants live in a prison called Camp Iguana”). Current information provided by Sabin Willett after a January 2006 visit to that camp. 103 Kathleen 85 Memorandum from George W. Bush, President, to the Vice President of the United States Sec’y of State, et al. (Feb. 7, 2002), in THE TORTURE PAPERS, supra note 11 at 134-35 (asserting the Geneva Conventions did not apply to terrorist organizations like Al Qaeda and that the Taliban were unlawful combatants). [Memorandum from Sec. of Def. to Chairman of the Joint Chiefs of Staff (Jan. 19, 2002) (“The United States has determined that Al Qaida and Taliban individuals . . . are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949.”] 106 FOIA 87 Id. 88 Taft Speech, available at http://www.humanrightsfirst.org/uslaw/pdf/taft-amer-uni-32405.pdf (last visited June 23, 2006). 89 Taft Speech supra notes 88. 90 Memorandum from Dep’t of the Navy to the Inspector General, Dep’t of the Navy, Statement for the Record: Office of General Counsel, Involvment in Interrogation Issiues (July 7, 2004) available at http://www.newyorker.com/images/pdfs/moramemo.pdf (last visited Press Kit, supra note 97. 101 The 84 See Draft Memorandum from John Yoo, Deputy Assistant Att’y Gen., Dep’t of Justice & Robert J. Delabunty, Special Counsel, Dep’t of Justice, to William J. Haynes II, General Counsel, Dep’t of Def. (Jan. 9, 2002), in THE TORTURE PAPERS, supra note 11, at 38, 50; Memorandum from Jay S. Bybee, Assistant Att’y Gen., Dep’t of Justice, to Alberto R. Gonzales, Counsel to the President & William J. Haynes, II, General Counsel, Dep’t of Def. (Jan. 22, 2002), in THE TORTURE PAPERS, supra note 11 at 81, 95. 86 Id. Prisoner Statements, supra note 49 at 3. T. Rhem, Detainees Living in Varied Conditions at Guantánamo, American Forces Information Service (Feb. 16, 2005), available at http://www.defenselink.mil/news/Feb2005/n02162005_2005021604. html (last visited June 23, 2006). 104 Id. 105 Id. Documents 4622-24, http://www.aclu.org/torturefoia/released/FBI_4622_4624.pdf (last visited June 25, 2006). 107 Zagorin & Duffy, supra note 44. 108 CENTRAL INTELLIGENCE AGENCY, KUBARK COUNTERINTELLIGENCE INTERROGATION (1963), http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB122/#kubark (last visited June 25, 2006); Id. at 88 (“[A] person cut off from external stimuli turns his awareness inward, upon himself, and then projects the contents of his own unconscious outwards, so that he endows his faceless environment with his own attributes, fears, and forgotten memories.”); Id. at 103 (“The interrogatee’s mature defenses crumbles [sic] as he becomes more childlike.”). 109 For a more detailed summary of psychological abuse at Guantánamo (as well as Afghanistan), see PHYSICIANS FOR HUMAN RIGHTS, BREAK THEM DOWN: SYSTEMATIC USE OF PSYCHOLOGICAL TORTURE BY U.S. FORCES (2005) [hereinafter PHR], available at http://www.phrusa.org/research/torture/pdf/psych_torture.pdf (last visited June 25, 2006). 110 Carlotta Gall & Neil A. Lewis, Threats and Responses: Captives – Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 45 Tales of Despair from Guantanamo, N.Y. TIMES, June 17, 2003, at A1. Regarding O.K. (on file with authors). 111 PHR, supra note 109, at 53-54 n.293 (citing BBC News, Mass Guantánamo Suicide Protest Jan. 25, 2005, http://news.bbc.co.uk/2/hi/americas/420427.stm (last visited June 25, 2006) (quoting Army spokesman Lt. Col. Sumpter)). 132 FOIA 112 Id. 113 White, supra note 45, at A1. 114 PHR, supra note 109, at 10 (quoting Brief of Professors and Practitioners of Psychology and Psychiatry as Amicus Curiae in Support of Respondent at 12-13, Wilkinson v. Austin, 545 U.S. 209 (2005) (No. 04-495)). 115 Shearman Sterling Report, supra note 2 at 8. 116 Shearman Sterling Report, supra note 2 at 9. 117 Hicks Aff. at 4-5, Hicks v. Bush, 397 F. Supp.2d 36 (D.D.C. 2005) (No. 02-299). 118 Joshua Colangelo-Bryan, Unclassified Attorney Notes Regarding Isa Ali Abdulla Al Murbati (on file with author). 119 Joshua Colangelo-Bryan, Unclassified Attorney Notes Regarding Jum’ah Mohammed AbdulLatif Al Dossari (on file with author). 120 Stephen Oleskey, Unclassified Attorney Notes Regarding Saber Lahmar (Dec. 2004, Oct. 2005) (on file with author); Robert Kirsch & Stephen Oleskey, Unclassified Attorney Notes Regarding Belkacem Bensayah (Dec. 2004 and Oct. 2005, respectively) (on file with authors). 121 Letter from Moazzam Begg to U.S. Forces Administration (July 12, 2004), available at http://news.bbc.co.uk/nol/chared/bsp/hi/pdfs/01_10_04.pdf (last visited June 25, 1006). 122 Id. 123 Shearman 125 Robert Kirsch, Unclassified Attorney Notes Regarding Belkacem Bensayah (on file with author). 126 Robert Kirsch, Unclassified Attorney Notes Regarding Mustafa Ait Idir (on file with author). 127 According to Sergeant Saar, Mr. Al-Qahtani “was subjected to strobe lights; a loud, insistent tape of cats meowing (from a cat food commercial) interspersed with babies crying; and deafening loud music,” often with repeated violent lyrics. SAAR, supra note 4 at 164. Dogs were also used to threaten Mr. Al-Qahtani. Id. 128 Robert Kirsch, Unclassified Attorney Notes Regarding Saber Lahmar (on file with author). Sterling Report, supra note 2 at 16. 130 Robert Kirsch, Unclassified Attorney Notes Regarding Mustafa Ait Idir (on file with author). 131 Richard 46 | 133 PHR, supra note 109 at 11. Menachem Begin, a former Israeli Prime Minister, describes his experience with sleep deprivation while being held in a Soviet prison: In the head of the interrogated prisoner a haze begins to form. His spirit is wearied to death, his legs are unsteady, and he has one sole desire: to sleep, to sleep just a little, not to get up, to lie, to rest, to forget. . . . Anyone who has experienced this desire knows that not even hunger or thirst are comparable with it. . . . I came across prisoners who signed what they were ordered to sign, only to get what the interrogator promised them. He did not promise them their liberty. He promised them—if they signed—uninterrupted sleep! Tom Malinowski, The Logic of Torture, WASH. POST, June 27, 2004, at B7. 134 Robert Kirsch, Unclassified Attorney Notes Regarding Belkacem Bensayah (Feb. 2005) (on file with author); Sergeant Saar witnessed prisoners being taken on late-night “walkabouts.” SAAR, supra note 4, at 174, 217. 135 Melissa Hoffer, Unclassified Attorney Notes Regarding Lakhdar Boumediene (on file with author). 136 Melissa Hoffer, Unclassified Attorney Notes Regarding Mohammed Nechla (on file with author). 137 Michael Scherer & Mark Benjamin, What Rumsfeld Knew? SALON.COM Apr. 14, 2006, http//:www.salon.com/news/feature/2006/04/14/rummy (last visited June 25, 2006). 138 O.K. v. Bush, 377 F. Supp.2d 102, 107 (D.D.C. 2005). 139 Guantánamo Sterling Report, supra note 2 at 40. 124 Mark Falkoff, Unclassified Attorney Notes Regarding Othman Abdulraheem Mohammad (on file with author); see also FOIA Document 4585, http:/www.aclu.org/torturefoia/released/FBI_4585.pdf (last visited June 25, 2006) (“BAU personnel witnessed sleep depravation [sic] . . . and utilization of loud music/bright lights/growling dogs in the Detainee interview process by DoD representatives”). 129 Shearman Document 5053, http://www.aclu.org/torturefoia/released/FBI_5053_5054.pdf (last visited June 25, 2006). J. Wilson & Muneer Ahmad, Unclassified Attorney Notes Prisoner Statements (Colangelo-Bryan) supra note 49, at 14. 140 Stephen Oleskey, Unclassified Attorney Notes Regarding Lakhdar Boumediene (on file with author). 141 Guantánamo 142 Shearman Prisoner Statements, supra note 49 at 11-12. Sterling Report, supra note 2 at 16. 143 An “ACS Interrogator” filed an allegation of inhumane treatment regarding an incident that occurred on April 22, 2003, in which the use of military guards during interrogations was described in some detail. In a memorandum for Maj. Gen. Geoffrey D. Miller regarding the results of an inquiry into an allegation of inhumane treatment of [name of prisoner redacted], the staff JAG lawyer quoted from the allegation: “. . . they [MPs] pushed in the back of the detainee’s knees with their knees, taking the detainee to his knees. Then holding the detainee by his upper arms they slammed his upper body to the floor.” FOIA Documents 1318-22, http://action.aclu.org/torturefoia/released/072605 (last visited June 25, 2006). The memorandum said further that the complaining interrogator stated that this procedure was repeated 25-30 times and with such force that the floor and a booth next door were shaking. The interrogator stated that when the prisoner was pushed to the floor, he turned his head so that the side of his face was hitting the floor and that such force was used the interrogator feared for the prisoner’s safety. The complaining interrogator’s supervisor (the name is redacted) corroborated the details of this allegation and the degree of force and moreover added that either the MPs or the military interrogators (the names are redacted) were laughing while this activity was taking place. Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba Id. at 1319. The military downplayed these concerns by saying that the shaking of the floor was caused by guards stomping on the floor with their boots as they pushed the prisoner down and that the guards had “constant control” of the prisoner at all times. Id. at 1319-20. In a memorandum from an ACS defense analyst, the April 22 incident is described as one that was “totally inappropriate and bordered on criminal.” FOIA Document 1333, http://action.aclu.org/torturefoia/released/072605 (last visited June 25, 2006). 159 The 144 A FOIA Document recording a “Narrative Medical Summary” for a prisoner says that the prisoner “reports that Reservation has ‘dragged me across the floor’ resulting in scrapes on his feet, jerked on the chains which have caused marks on his wrists, gripped the cuffs so that they tightened excessively causing marks on his wrists, lifted him up then ‘slammed’ him down on his knees, made his mouth such that he was spitting up blood, made a tooth loose, bruised several areas of his upper arms and torso, and created pain on his lower ribs. He denies trauma to the rib area but does not know how that area is causing him so much pain. He felt so bad last night that he tried to ‘cut’ the artery in his neck with his fingernails.” FOIA Documents 1347-50, http://action.aclu.org/torturefoia/released/072605/1243_1381.pdf (last visited June 25, 2006). The author of the medical summary noted: “Stated source of injury for the various areas is consistent with the injuries noted today.” Id. at 1349. Reservation is the term used within the camps in Guantánamo to refer to interrogations. Cf. YEE, supra note 5 at 77 (“We never used the word ‘interrogation’ on the blocks, saying instead that the detainees were going to ‘reservation.’”). 163 Paisley 145 Mark Falkoff, Unclassified Attorney Notes Regarding Yasein Khasem Mohammed Esmail (on file with author). 167 M. Gregg Bloche & Jonathan H. Marks, Doctors and Interrogators at Guantánamo Bay, 353 NEW ENG. J. MED. 6, 6-8 (2005). 146 Mark 168 See designation ERF (Extreme Reaction Force) is sometimes also used. 160 SAAR, supra note 4 at 96-99. 161 See YEE, supra note 5 at 109 (“IRFing should have been kept to the bare minimum and carried out only when necessary, but there were weeks when it occurred every day”). 162 See SAAR, supra note 4 at 102. Dodds, Tapes Show Guantánamo Squads’ Tactics, ASSOC. PRESS, Feb. 1, 2005. 164 Id. 165 Guantánamo Prisoner Statements, supra note 49 at 3-4. This incident is corroborated by several sources. A substantially similar description is reported by Shafiq Rasul, Asif Iqbal, and Rhuhel Ahmed. SHAFIQ RASUL, ASIF IQBAL, & RHUHEL AHMED, supra note 158 ¶ 167. What appears to be the same incident is also the subject of an FBI memo (dated June 7, 2002, but referring to an incident that occurred “three or four weeks ago”). The FBI memo notes that the prisoner “had what appeared to be a recent wound on the bridge of his nose.” FOIA Document 3855, http://aclu.org/turturefoia/released/05/25/05 (last visited June 25, 2006). Mr. Al Dossari’s lawyer corroborates that the prisoner has “a prominent scar” on his nose that is consistent with his account. 166 CBS News, G.I. Attacked During Training, Nov. 3, 2004. Kirsch, Unclassified Attorney Notes Regarding Mustafa Ait Idir (on file with author). id. at 7 (“Additional Protocol I to the Geneva Conventions provides that medical personnel ‘shall not be compelled to perform acts or to carry out work contrary to the rules of medical ethics.’ Although the protocol has not been ratified by the U.S., this principle has attained the status of customary international law.”). 148 Melissa 169 Id. Falkoff, Unclassified Attorney Notes Regarding Abd al-Malik al-Wahab (on file with author). 147 Robert Hoffer, Unclassified Attorney Notes Regarding Lakhdar Boumediene (on file with author). 149 Id. 150 Motion for a Preliminary Injunction Barring the Government from Rendering Sami Al-Laithi to Egypt to Face Persecution, or Revealing to the Egyptian Government Additional Facts Concerning His Opposition to the Repressive and Undemocratic Regime of Hosni Mubarak at 2-3, Sliti v. Bush, No. 05-CV-0429 (D.D.C. 2005). 151 Carol D. Leonnig, Guantánamo Detainee Says Beating Injured Spine, WASH. POST, Aug. 13, 2005, at A18. 170 Mark Falkoff, Unclassified Attorney Notes Regarding Othman Abulraheem Mohammad (on file with author). 171 Melissa Hoffer, Unclassified Attorney Notes Regarding Lakhdar Boumediene (on file with author). 172 Chronological 152 Id. 153 Id. 154 Shearman Sterling Report, supra note 2 at 21. 155 Shearman Sterling Report, supra note 2 at 29. 156 Shearman Sterling Report, supra note 2 at 50. 157 Baher Azmy, Unclassified Attorney Notes Regarding Murat Kurnaz (on file with author). 158 SHAFIQ at 6 (“[C]ommunications from ‘enemy persons under U.S. control’ at Guantánamo ‘are not confidential and are not subject to the assertion of privileges’ by detainees.”) (quoting Memorandum from Richard A. Huck, Chief of Staff, U.S. Southern Command, on U.S. Southern Command Confidentiality Policy for Interactions Between Health Care Providers and Enemy Persons (Aug. 6, 2002)). RASUL, ASIF IQBAL, & RHUHEL AHMED, COMPOSITE STATEMENT: DETENTION IN AFGHANISTAN AND GUANTANAMO BAY (2004), http://www.ccr-ny.org/v2/legal/september_11th/docs/Guantanamo_composite_statement_FINAL.pdf (last visited June 25, 2006). Medical Record for Lakhdar Boumediene (Feb. 20, 2003), Bates No. OLE 00826 (released as a result of FOIA litigation by Boumediene petitioners, Oleskey v. U.S. Dept. of Defense, U.S. Dept. of Justice, No. 05-10739 (D. Mass 2005)). 173 Interrogation Log for Detainee 063, TIME, http://www.time.com/time/2006/log/log.pdf (last visited June 25, 2006). 174 Shearman Sterling Report, supra note 2 at 11. 175 Motion for a Preliminary Injunction Requiring that Respondents Provide His Counsel with a Complete Copy of His Own Medical Records, and Cease Their Practice of Intentional Medical Malpractice Against Him at 20, Sliti v. Bush, No. 05-CV-0429 (D.D.C. 2005). 176 Motion for a Preliminary Injunction Concerning Conditions of Confinement at 24, Sliti v. Bush, No. 05-CV-429 (D.D.C. Aug. 9, Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 47 2005) (citing Unclassified Memorandum re: Omas Deghayes (July 19, 2005). Lawyers for Abdulla Thani Faris Al-Anazi, a double amputee, believe he is receiving “inadequate medical care”; his lawyers have requested that his defective prostheses be repaired and that he be given treatment for the lesions they cause. See Letter to Lt. Comdr. De Alicante on Medical Treatment for Prisoner Abdulla Thari Faris AlAnazi (Aug. 29, 2005) (Anant Raut). Idir (on file with author). 177 New 197 Stephen Yorker reporter Jane Mayer has detailed efforts of military behavioral scientists to “reverse-engineer” harsher interrogation techniques drawn from a classified military program called Survival, Evasion, Resistance, and Escape (SERE). During the SERE program, U.S. military personnel are taught to survive extreme and aggressive interrogation tactics. Behavioral scientists have drawn from the SERE program to develop tactics that prisoners cannot withstand. See Jane Mayer, The Experiment, NEW YORKER, July 11 & 18, 2005; see also Bloche & Marks, supra note 166 at 7-8. 178 Robert 194 Robert Kirsch, Unclassified Attorney Notes Regarding Mustafa Ait Idir (on file with author). 195 YEE, Oleskey, Unclassified Attorney Notes Regarding Lakhdar Boumediene (on file with author). 198 Neha Gohil, Unclassified Attorney Notes Regarding Fahmi Abdullah Ahmed Al Towlaqi (on file with author); see also FOIA Document 1379, available at http://action.aclu.org/torturefoia/released/072605 (last visited June 15, 2006) (“documenting case in which a Camp barber intentionally gave two unusual haircuts, in an effort to frustrate detainee requests for similar haircuts, as a sign of detainee unity”). Kirsch, Unclassified Attorney Notes Regarding Mustafa Ait Idir (on file with author). 199 Neha 179 Robert Jay Lifton, Doctors and Torture, 351 NEW ENG. J. MED. 415, 416 (2004). 200 See 180 Joshua Colangelo-Bryan, Unclassified Attorney Notes Regarding Al Noaimi (on file with author); see also FOIA Document 00002, http://action.aclu.org/torturefoia/released/062405 (last visited June 25, 2006) (stating that a female interrogator who wiped dye from red magic marker on prisoner’s shirt after prisoner spit on her “received a verbal reprimand for inappropriate contact/interrogation technique”). 181 One prisoner reported that menstrual blood was smeared on a prisoner’s chest during interrogation. Mark Falkoff, Unclassified Attorney Notes (on file with author); see also SAAR, supra note 4 at 225-28 (describing an incident corresponding to this allegation). 182 SAAR, supra note 4 at 228. 183 FOIA Document 1333, http://action.aclu.org/torturefoia/released/072605 (last visited June 25, 2006). 184 Baher Azmy, Unclassified Attorney Notes Regarding Murat Kurnaz (on file with author). 185 Cf. YEE, supra note 5 at 110 (“Female guards were often used to provoke the detainee. Knowing that physical contact between unrelated men and women is not allowed under Islamic law, the female MPs would be exceptionally inappropriate in how they patted down the prisoners and how they touched them on the way to the showers or recreation. Detainees often resisted and then were IRFed.”). supra note 5 at 115. 196 Id. Gohil, Unclassified Attorney Notes Regarding Fahmi Abdullah Ahmed Al Towlaqi (on file with author). infra note 202 and accompanying text. 201 Fiqh-us-Sunnah, Volume 5: Tawaf or Circumambulation around Ka'bah, http://www.usc.edu/dept/MSA/law/fiqhussunnah/fus5_76.html (last visited June 25, 2006). 202 Motion for a Preliminary Injunction Concerning Conditions of Confinement at 22, Sliti v. Bush (D.D.C. 2005) (No. 05-CV-429) (citing Unclassified Memorandum re: Omar Deghayes (July 19, 2005) at 5). The memo describes Camp Romeo Block as a special disciplinary block where prisoners are frequently made to strip and are held only in their shorts. 203 Robert Kirsch, Unclassified Attorney Notes Regarding Mustafa Ait Idir (Feb. 2004) (on file with author). This account is corroborated by Fahmi Abdullah Ahmed Al Towlaqi, who states that he witnessed MPs bend back a prisoner’s finger so far that it broke. Neha Gohil, Unclassified Attorney Notes Regarding Fahmi Abdullah Al Towlaqi (on file with author). Mr. Ait Idir’s GTMO medical records confirm that his finger was broken. The records fail to reflect that it was the IRF that broke his finger. Lakhdar Boumediene also witnessed Mustafa Ait Idir’s finger being bent back. Stephen Oleskey, Unclassified Attorney Notes Regarding Lakhdar Boumediene (Feb. 2005) (on file with author). See also FOIA Documents 4622-24, http://www.aclu.org/torturefoia/released/FBI_4622_4624.pdf (last visited June 15, 2006) (describing a similar incident in which a female interrogator bent back prisoner’s thumbs). 204 Interview 187 Carol D. Leonnig, Further Detainee Abuse Alleged, WASH. POST, Dec. 26, 2004, at A01. with Marc Falkoff, Attorney, Covington & Burling, broadcast by Nasseb Vibes (Feb. 15, 2005), available at www.naseeb.com/naseebvibes/interview-detail.php?aid=3526 (last visited June 21, 2006). 188 Id. 205 Hicks 189 Thomas 206 REPORT 186 Guantánamo Prisoner Statements, supra note 49 at 7-8. B. Wilner, Neil Koslowe, Kristine Huskey, Jared Goldstein, Unclassified Attorney Notes Regarding 12 Kuwaiti Prisoners (on file with authors). 190 Guantánamo Prisoner Statements supra note 49 at 17. 191 Stephen Oleskey, Melissa Hoffer, Unclassified Attorney Notes Regarding Lakhdar Boumediene (on file with authors). 192 Melissa Hoffer & Robert Kirsch, Unclassified Attorney Notes Regarding Hadj Boudella (on file with authors). 193 Robert 48 | Kirsch, Unclassified Attorney Notes Regarding Mustafa Ait Aff., supra note 117 at 3:20. INTO THE SYSTEMATIC AND INSTITUTIONALIZED U.S. DESECRATION OF THE QUAR’AN AND OTHER ISLAMIC RITUALS: TESTIMONIES FROM FORMER GUANTÁNAMO BAY DETAINEES 2, www.cageprisoners.com/downloads/USQuranDesecration.pdf (last visited June 15, 2006) (statement by Moazzam Begg). 207 Robert Kirsch, Unclassified Attorney Notes Regarding Mustafa Ait Idir (on file with author). 208 Shearman Sterling Report, supra note 2, at 13; see also FOIA Document 4737. Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba http://www.aclu.org/torturefoia/released/FBI_4737_4738.pdf (last visited June 15, 2006); Othman Abdulraheem Mohammed describes interrogators wrapping Qur’ans in Israeli flags, throwing them on the ground, and stomping on them. Mark Falkoff, Unclassified Attorney Notes Regarding Othman Abdulraheem Mohammed (on file with author). 209 FOIA Document 4737-38, http:www.aclu.org/torturefoia/released/FBI.121504.4737-1738.pdf (last visited June 30, 2006). 210 CBS News Video Shows Gitmo Abuse” Feb. 1, 2005 www.cbsnews.com/stories/2005/02/04/terror/main671682.shtml (last visited June 15, 2006). 211 The heightened severity of pre-Guantánamo abuse accounts is probative of the truth of prisoner allegations, since it may be reflective of an awareness on the military’s part that, whatever the precise status of Guantánamo, its actions there are more constrained. 212 Joshua Colangelo-Bryan, Unclassified Attorney Notes Regarding Jum’ah Mohammed Abdul Latif Al Dossari (on file with author). 213 “Waterboarding” entails the use of a “wet towel and dripping water to induce the misperception of suffocation.” Memorandum from Dept. of Def. on Counter-Resistance Techniques at 6 (Nov. 27, 2002). Typically, “The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner’s face and water is poured over him.” Brian Ross & Richard Esposito, CIA Harsh Interrogation Techniques Described, ABC NEWS, May 19, 2006. 214 Baher Azmy, Unclassified Attorney Notes Regarding Murat Kurnaz (on file with author). 215 Thomas B. Wilner, Neil Koslowe, Kristine Huskey, Jared Goldstein, Unclassified Attorney Notes Regarding 12 Kuwaiti Prisoners (on file with authors). 216 Mark Falkoff, Unclassified Attorney Notes Regarding Abdulsalam Ali Abdulrahman Al-Hela (on file with author). 223 See Motion for a Preliminary Injunction Concerning Conditions of Confinement 3-4, Sliti v. Bush (D.D.C. 2005) (No. 05-CV-429) (citing unclassified statement of Binyam Mohammed). 224 Motion for a Preliminary Injunction Concerning Conditions of Confinement 13, Sliti. v. Bush (D.D.C. 2005) (No. 05-CV-429) (citing Shaker Aamer Statement). 225 Id. at 14-15. 226 Decl. of Julia Tarver, Majid Abdulla Al Joudi v. Bush, Civ. No. 050301, at para. 7 (Oct. 14, 2005). 227 Id. 228 Id. at paras. 14-16. 229 Id. at para. 9, n 1. 230 Emergency Motion for Injunction Against Further Torture of Mohammed Bawazir, Al-Adahi v. Bush (D.D.C. No. 05-280 (GK)) (citation omitted). 231 U.S. DEPARTMENT OF STATE, SECOND PERIODIC REPORT OF THE U.S. OF AMERICA TO THE COMMITTEE AGAINST TORTURE, Annex I, Part I (2005), available at www.state.gov/g/drl/rls/45738.htm (last visited June 23, 2006). The Second Periodic Report substantiates only 10 minor episodes of misconduct at GTMO, such as: a female interrogator sitting in a prisoner’s lap and running her fingers through his hair; an interrogator using duct tape to tape shut the mouth of a prisoner who was not cooperating; an interrogator bruising a prisoner’s knees by repeatedly directing MPs to force him into and out of a prone position; and an MP assaulting a prisoner by spraying him with a hose after the prisoner had thrown a foul-smelling liquid on the MP. Id. 232 Brief of Petitioner-Appellees/Cross-Appellants at 14-15, Fawzi Khalid A.F. Al Odah v. U.S., 05-5064, 05-5095-05-5116 (Cir. C.D. June 28, 2005). 233 See 217 Decl. of Joseph Margulies at para. 12, Habib v. Bush, (D.D.C. Apr 27, 2005) (No. 02-CV-1130). generally FBI documents released under the Freedom of Information Act, available at http://action.aclu.org/site/PageServer?pagename=torturefoia (last visited June 23, 2006). 218 Motion 234 See for a Preliminary Injunction Concerning Conditions of Confinement 16-17, Sliti v. Bush (D.D.C. 2005) (No. 05-CV-429) (citing Unclassified Memorandum re: Omar Deghayes (July 19, 2005) at 3-4). 219 Id. at 5, 7 (cited in id. at 22-23, 26). 220 Motion for a Preliminary Injunction Concerning Conditions of Confinement 16, Sliti v. Bush (D.D.C. 2005) (No. 05-CV-429) (citing Unclassified Memorandum re: Omar Deghayes (July 19, 2005) at 3). “The lights are some of the worst tools used against us. They are neon, two and a half metres long, glaring 24 hours a day. They are fitted directly above the concrete tomb that is meant to be our bed. They are never dimmed. Have you ever lived in bright lights for 24 hours a day, every day? It is a constant struggle to get any sleep at all. Many in the camp suffer mentally from sleep deprivation.” Id. 221 Motion for a Preliminary Injunction Concerning Conditions of Confinement at 12-13, Sliti. v. Bush (D.D.C. 2005) (No. 05-CV-429) (citing Memo on Conditions in Guantánamo Bay 3 (Aug. 13, 2005). The incident was corroborated by Saber Lahmar. Melissa Hoffer, Unclassified Attorney Notes Regarding Saber Lahmar (Aug. 2005) (on file with author). 222 Id. U.S. Senate Committee on the Judiciary, Notice of Committee Hearing (June 8, 2005), available at http://judiciary.senate.gov/hearing.cfm?id=1542 (last visited June 22, 2006). 235 See Judith Resnik, Opening the Door, Court Stripping: Unconscionable and Unconstitutional?, SLATE http://www.slate.com/id/2135240 (last visited June 23, 2006). 236 See Josh White & Carol Leonnig, U.S. Cites Exception in Torture Ban; McCain Law May Not Apply to Cuba Prison, WASH. POST, Mar. 2006, at A04. 237 Id. 238 Id. 239 - S.Ct. - , 2006 WL 176473. 240 See infra notes 241-252 and accompanying text. 241 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 1, Dec. 10, 1984, Senate Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 [hereinafter CAT]. 242 Id art. 2(2). The CAT prohibits not only torture but “cruel, inhuman or degrading treatment or punishment.” Id art. 16(1). Article 16 provides that “[e]ach State Party shall undertake to prevent in any ter- Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba | 49 ritory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1…” under color of law. Id. The CAT does not define “cruel, inhuman or degrading treatment or punishment.” 243 U.S. Reservations, Declarations and Understandings, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Cong. Rec. S17486-01 (Oct. 27, 1990) (establishing those reservations that modify the CAT). A reservation modifies the terms of a treaty with respect to the country making the Reservation; the Reservation will be deemed invalid if deviates from the object, purposes and substance of the treaty term. An understanding announces how a ratifying country “understands” or interprets a treaty. 244 Id art. 16. 245 Id. at I(1). This understanding arguably binds the United States to the same standards of behavior as those adhered to in its domestic criminal justice system. Through this understanding, the Constitution and its judicial interpretation appear to become the measure by which U.S. compliance with its treaty obligations under Article 16 of the CAT will be judged. At a minimum, violations of the Eighth Amendment prohibition against cruel and unusual punishment are deemed by the U.S. as equivalent to an Article 16 violations. However, U.S. officials conducting the “war on terrorism” appear to disagree about the precise reach of this prohibition. Compare U.S. DEPT. OF DEF., WORKING GROUP REPORT ON DETAINEE INTERROGATIONS IN THE GLOBAL WAR ON TERRORISM: ASSESSMENT OF LEGAL, HISTORICAL, POLICY, AND OPERATIONAL CONSIDERATIONS 36 (2003), available at http://www.washingtonpost.com/wpsrv/nation/documents/040403dod.pdf (last visited June 22, 2006) (“The standards of the Eighth Amendment, however, are relevant because of the U.S. Reservation to the Torture Convention’s definition of cruel, inhuman, and degrading treatment”), with Gonzales testimony, Hearing Before the Committee on The Judiciary, U.S. Senate, 109th Cong. 10 (2005) (Statement of Alberto R. Gonzales) (“as a direct result of the reservation the Senate attached to the CAT, the Department of Justice has concluded that under Article 16 there is no legal prohibition under the CAT on cruel, inhuman or degrading treatment with respect to aliens overseas”). 246 U.S. 247 See RUDs, supra note 243, at II(1)(a). id. CAT, supra note 241, art. 22(4)(b). The Committee Against Torture is the treaty body, created by the CAT, tasked with overseeing the implementation of the treaty. RUDs, supra note 243, at III(1) and (2). 250 18 U.S.C. 2340, 2340A. The United States later passed another crucial piece of implementing legislation. The CAT requires that “no State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” CAT, supra note 241, art. 3. The Congress required the Immigration and Naturalization Service to promulgate regulations to insure U.S. compliance with this proscription. See Foreign Affairs, Reform and Restructuring Act of 1998, P.L. 105-227, 112 Stat. 2681-82. The regulations were issued and went into effect in 1999. They elaborate the definition of torture, as understood by the United States on signing the CAT. See 8 CFR § 208.18 et. seq. 251 18 U.S.C. 2340. 252 Id. 50 | Econ. & Soc. Council [ECOSOC], Situation of Detainees at Guantánamo Bay at 6, U.N. Doc., Future E/CN.4/2006/120 (Feb. 15, 2006) http://www.ohchr.org/english/bodies/chr/docs/62chr/E.CN.4.2006.12 0_.pdf. (last visited June 25, 2006). 254 Id. at 7-8. 255 The UNCHR is supported, in large part, by U.S. funding. Between January 1, 2006 and April 30, 2006, the United States donated $216,796,577 to the UNCHR. Government of the United States of America – UNHCR Donor Profile and Donor History http://www.unhcr.org/cgi-bin/texis/vtx/home/opendoc.htm?tbl=PARTNERS&page=home&id=3b9f6316a (last visited June 23, 2006). 256 ECOSOC, supra note 253. 257 Id. at 11-21. 258 Id. at 21-27. 259 Id. at 11-21 27-38. 260Id. at 38-39. 261 DemocracyNow.org, Archbishop Desmond Tutu on Guantánamo, President Bush and the Invasion of Iraq Oct. 5th, 2004 http://www.democracynow.org/article.pl?sid=04/10/05/1411259. 262 BBC News, UK calls for Guantánamo Closure May 10, 2006 http://news.bbc.co.uk/2/hi/uk_news/politics/4759317.stm (last visited Jjune 25, 2006). 263 Sam Cage, UN Urges US to Shut Guantánamo Prison ASSOC. PRESS May 19, 2006. 264 Taft Speech, supra note 88. When asked during his tenure at the U.S. State Department to comment on prisoner status, Taft recommended that prisoners be treated in accordance with the Geneva Conventions. See William H. Taft IV, Memorandum Regarding President Counsel’s Paper on the Geneva Convention (Feb. 2, 2002), available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.02.02%20 DOS%20Geneva.pdf (last visited June 22, 2006) (noting that “the U.S. bases its conduct not just on its policy preferences but on its international legal obligations”). 265 See 248 See 249 U.S. 253 U.N. VICE ADM. ALBERT T. CHURCH, NAVAL INSPECTOR GEN., EXECUTIVE SUMMARY OF REPORT TO SEC. OF DEFENSE ON INTERROGATION OPERATIONS (2005) www.defenselink.mil/news/Mar2005/d20050310exe.pdf (last visited June 25, 2006). This report into abuse at Guantánamo, as well as Iraq and Afghanistan, found that, as of September 30, 2004, only eight incidents occurred at Guantánamo and “all . . . were relatively minor in their physical nature.” Id. Only three of these incidents were related to interrogation, and two of the three involved sexually provocative behavior. Id. at 14. According to the Executive Summary, the report only looked at interrogation technique policy and not at the overall climate of misbehavior fostered by the abrogation of the Geneva Conventions. See also ARMY REGULATION 15-6, EXECUTIVE SUMMARY OF FINAL REPORT, INVESTIGATION INTO FBI ALLEGATIONS OF DETAINEE ABUSE AT GUANTÁNAMO BAY, CUBA DETENTION FACILITY (2005) www.defenselink.mil/news/Jul2005/d20050714report.pdf (last visited June 25, 2006) (reporting the results of another investigation into FBI allegations of abuse at Guantánamo and finding that interrogators had creatively interpreted FM 34-52 interrogation technique guidelines to include rubbing perfume on a prisoner and impersonating officials from the FBI). Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba 266 Hicks Aff., supra note 117 at paras. 5-6. 267 Guantánamo Prisoner Statements, supra note 49 at 3-4. 268 Robert Kirsch, Unclassified Attorney Notes Regarding Mustafa Ait Idir (on file with author), Decl. of Julia Tarver, supra note 226. 269 Hicks Aff., supra note 117 at paras. 13. 270 Richard J. Wilson & Muneer Ahmad, Unclassified Attorney Notes Regarding O.K. (on file with authors). 271 Mark Falkoff, Unclassified Attorney Notes Regarding Abd al-Malik al-Wahab (on file with author). 272 See Motion for a Preliminary Injunction Requiring that Respondents Provide His Counsel with a Complete Copy of His Own Medical Records, and Cease Their Practice of Intentional Medical Malpractice Against Him at 11-12, Sliti v. Bush (No. 05-CV-0429) (D.D.C. 2005). 273 Melissa Hoffer, Unclassified Attorney Notes Regarding Lakhdar Boumediene (on file with author), Melissa Hoffer, Unclassified Attorney Notes Regarding Mohammed Nechla (on file with author). 274 Stephen Oleskey, Unclassified Attorney Notes Regarding Saber Lahmar (Dec. 2004, Oct. 2005) (on file with author); Robert Kirsch & Stephen Oleskey, Unclassified Attorney Notes Regarding Belkacem Bensayah (Dec. 2004 and Oct. 2005, respectively) (on file with authors). 275 Mark Falkoff, Unclassified Attorney Notes Regarding Abd al-Malik al-Wahab (on file with author). 276 Letter from Moazzam Begg to U.S. Forces Administration, supra note 121. 277 Baher Azmy, Unclassified Attorney Notes Regarding Murat Kurnaz (on file with author). 278 Mark Falkoff, Unclassified Attorney Notes Regarding Abd al-Malik al-Wahab (on file with author). 279 Joshua Colangelo-Bryan, Unclassified Attorney Notes Regarding Abdullah Al Noaimi (on file with author). 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