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Torture Allegations

Allegations of harsh interrogations and torture have been consistent in the decade since Guantanamo Bay began housing prisoners. Former detainees subsequently voiced abuse accusations, including Sami-al-Leithy, Murat Kurnaz, Mohammed El Gharani, Mubarak Hussain bin Abul Hasim and Binyam Mohamed. Detainees still being held at the facilities have made similar claims, including the suspected mastermind of the USS Cole bombing, Abd al-Rahim al-Nashiri. The alleged torture ranges from electrocution and water boarding to sleep deprivation and religious persecution. Concern over the torture and rendition of foreign nationals was amplified in September 2006 when President Bush confirmed the existence of secret prisons used to funnel high-value detainees to Guantanamo Bay — including suspected 9/11 co-conspirator Khalid Sheikh Mohammed.

In March 2008, the American Civil Liberties Union (ACLU) filed a lawsuit to compel the US government to release unredacted transcripts of military hearings that allegedly described the torture of detainees. In response to the Freedom of Information Act request, the Central Intelligence Agency (CIA) released the requested documents in June 2009. While still redacted, the documents clearly described the physical and mental abuse of Guantanamo detainees. The revelation of this new evidence, and the actions of legal activists, have led to a number of civil suits brought by former detainees such as Rafik Alhami, Adel Hassan Hamed and Abdul Rahim Abdul Razak Al Ginco. Similarly, in July 2009 the US District Court for the District of Columbia suppressed out-of-court statements made by a Guantanamo detainee upon suspicion that it had been elicited through torture. The ACLU has filed a motion in the Guantanamo Bay military court for access to the testimony of 9/11 conspirators during their hearings and trial. In August 2012, a military commissions judge at Guantanamo announced that the court would hear oral arguments regarding the allegations of censorship of torture allegations during the 9/11 trial.

The ACLU argued that the public has a constitutional right to access information about the operation of the government, including information related to the detainee's imprisonment and interrogation. In a similar vein, Abd al-Rahim al-Nashiri's defense attorneys requested in June 2012 that his trial for the USS Cole bombing be broadcast worldwide rather than only to the Pentagon as planned. The government insists that it has the power to classify detainees' testimony. In February 2013, a military judge ordered the removal of any monitoring system that would censor the public broadcast of the 9/11 military commission hearings.

However, the true "revelation" regarding US torture of Guantanamo detainees came in April 2009 when the DOJ's Office of Legal Counsel (OLC) was forced to release four top secret memos which outlined controversial CIA interrogation techniques and their legal rationales. However, both authors of the memos were cleared in a DOJ ethics report released in January 2010. The release of the "torture memos" was followed by official reports from the OLC and the US Senate Armed Services Committee which concluded that Guantanamo detainees enjoy some constitutional protections.

The international community, specifically nongovernmental organizations (NGOs), criticized these prisoner abuse issues. Amnesty International (AI) decried US treatment of prisoners as early as October 2004. A confidential report from the International Committee of the Red Cross (ICRC) classified CIA interrogation tactics as torture in 2007, although it was not made public until March 2009. However, Martin Scheinin, the UN Special Rapporteur on human rights and counterterrorism, publicly urged the US to hasten the prosecution or release of Guantanamo detainees — first in October 2007 and in October 2009. UN High Commissioner for Human Rights Navi Pillay echoed these concerns in January 2012. Additionally, the UN has cited the denial of international access to Guantanamo as an example of degrading torture standards worldwide.

Pursuant to these international concerns, French Judge Sophie Clement requested access to information regarding incarceration policies and the justification for the detention of three former detainees in January 2012. The men, Nizar Sassi, Mourad Benchellali and Khaled Ben Mustapha, claim that they were subjected to sexual abuse, beatings and sleep deprivation during their respective imprisonments between 2001 and 2005. In March 2012 the Inter-American Commission on Human Rights (IACHR) agreed to hear the case of detainee and Algerian national Djamel Ameziane. Ameziane has been held at Guantanamo Bay without any charge or trial for more than 10 years. This is the first time that the IACHR has agreed to accept jurisdiction over a Guantanamo detainee. They will investigate whether the US's failure to transfer Ameziane is in compliance with international human rights law. Just prior to his July 2012 arraignment, Khalid Sheik Mohammed revealed that he asked the UN to investigate information surrounding his interrogation. Mohammed has claimed that his confession to the 9/11 attacks came after days of sleep deprivation.

JURIST Guest Columnist Naureen Shah has argued that one of the enduring issues presented by Guantanamo is the cycle of torture facing released detainees. Free from captivity by the US military, they often find themselves victim to abuse at the hands of the country they are released to:

With secrecy and obfuscation, the U.S. once again stands alone among its peers. The UK and other allies, dealing with terrorism suspects in deportation cases, give them a day in court by providing the terms of assurances and blueprints for better monitoring, including regular, private interviews of returnees, conducted by professionals trained to detect abuse. The U.S. government should do the same: design smarter monitoring protocols, let courts and the public test claims that diplomatic assurances can prevent abuse, and resettle detainees who face too great a risk of torture. To truly end the legacy of Guantanamo, the U.S. should ensure the safety of the men too afraid to go home again.

The families of detainees who have died at Guantanamo filed multiple wrongful death claims filed against the US government. Two of the lawsuits originated from three June 2006 suicides which left Mani Shaman Turki al-Habardi Al-Utaybi, Yasser Talal Al-Zahrani and Ali Abdullah Ahmed dead. Initially, the US District Court for the Columbia District dismissed the lawsuits in February 2010, the Center for Constitutional Rights (CCR) appealled the dismissal in June 2011. The US Court of Appeals for the District of Columbia Circuit also dismissed the CCR appeal in February 2012 on the basis that the court lacked subject matter jurisdiction over the claims under the Military Commissions Act of 2006 [PDF].

Despite widespread allegations of abuse and torture connected to Guantanamo Bay, obtaining persuasive evidence and bringing allegations to light has proved arduous. The case of detainee Majid Khan underscores that difficulty. Khan was arrested by US forces in Pakistan in March 2003 and held at a secret CIA prison prior to his transfer to Guantanamo Bay in September 2006. During his initial incarceration, he claimed that he was subjected to repeated, systematic torture. Khan's allegations of state-sanctioned torture provoked action from the US Court of Appeals for the District of Columbia in December 2007. However, Khan reached a plea agreement with military prosecutors in February 2012 that grants him a greatly reduced sentence in exchange for his testimony against other detainees. He pleaded guilty to five counts of terrorism, including conspiracy, attempted murder and murder, the same month. JURIST Guest Columnist Andrea Prasow claims that this plea agreement will prevent other allegations of torture from being brought to light:

If Khan testifies in person, it is less likely that the government will need to rely on statements from other witnesses obtained in coercive circumstances (despite improvements to the military commission rules it is still possible for coerced evidence to be admitted). The more people who testify in person against KSM and others, the less likely it is that the public will learn more about his torture. And Khan's guilty plea means he will not present evidence of his ill-treatment to explain why he may have made any confessions. Instead, with the ink fresh on a plea deal, his years in secret detention will likely only be used at his sentencing in a plea for leniency.

More recently, in a Freedom of Information Act (FOIA) lawsuit, Judge John Bates of the US District Court for the District of Columbia issued an opinion ordering the Department of Defense (DOD) to turn over three videotapes depicting Guantanamo detainees being forcibly removed from their cells. The DOD had argued that the videotapes should not be released because it would violate the guards' privacy, but Judge Bates nonetheless ordered the DOD to produce the videos for in camera review by June 11, 2012.




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