Fwd: White House says torture at Gitmo is legal

[Guest guest]

http://www.washingtonpost.com/wp-dyn/content/article/2006/03/02/AR2006030202054.\

html?nav=rss_nation

 

U.S. Cites Exception in Torture Ban

McCain Law May Not Apply to Cuba Prison

 

By Josh White and Carol D. Leonnig

Washington Post Staff Writers

Friday, March 3, 2006; A04

 

Bush administration lawyers, fighting a claim of torture by a

Guantanamo Bay detainee, yesterday

argued that the new law that bans cruel, inhuman or degrading

treatment of detainees in U.S. custody

does not apply to people held at the military prison.

 

In federal court yesterday and in legal filings, Justice Department

lawyers contended that a

detainee at Guantanamo Bay, Cuba, cannot use legislation drafted by

Sen. John McCain (R-Ariz.) to

challenge treatment that the detainee's lawyers described as

" systematic torture. "

 

Government lawyers have argued that another portion of that same law,

the Detainee Treatment Act of

2005, removes general access to U.S. courts for all Guantanamo Bay

captives. Therefore, they said,

Mohammed Bawazir, a Yemeni national held since May 2002, cannot claim

protection under the

anti-torture provisions.

 

Bawazir's attorneys contend that " extremely painful " new tactics used

by the government to

force-feed him and end his hunger strike amount to torture.

 

U.S. District Judge Gladys Kessler said in a hearing yesterday that

she found allegations of

aggressive U.S. military tactics used to break the detainee hunger

strike " extremely disturbing " and

possibly against U.S. and international law. But Justice Department

lawyers argued that even if the

tactics were considered in violation of McCain's language, detainees

at Guantanamo would have no

recourse to challenge them in court.

 

In Bawazir's case, the government claims that it had to forcefully

intervene in a hunger strike that

was causing his weight to drop dangerously. In January, officials

strapped Bawazir into a special

chair, put a larger tube than they had previously used through his

nose and kept him restrained for

nearly two hours at a time to make sure he did not purge the food he

was being given, the government

and Bawazir's attorneys said.

 

Richard Murphy Jr., Bawazir's attorney, said his client gave in to the

new techniques and began

eating solid food days after the first use of the restraint chair.

Murphy said the military

deliberately made the process painful and embarrassing, noting that

Bawazir soiled himself because

of the approach.

 

Kessler said getting to the root of the allegations is an " urgent matter. "

 

" These allegations . . . describe disgusting treatment, that if

proven, is treatment that is cruel,

profoundly disturbing and violative of " U.S. and foreign treaties

banning torture, Kessler told the

government's lawyers. She said she needs more information, but made

clear she is considering banning

the use of larger nasal-gastric tubes and the restraint chair.

 

In court filings, the Justice Department lawyers argued that language

in the law written by Sens.

Lindsey O. Graham (R-S.C.) and Carl M. Levin (D-Mich.) gives

Guantanamo Bay detainees access to the

courts only to appeal their enemy combatant status determinations and

convictions by military

commissions.

 

" Unfortunately, I think the government's right; it's a correct reading

of the law, " said Tom

Malinowski, Washington advocacy director for Human Rights Watch. " The

law says you can't torture

detainees at Guantanamo, but it also says you can't enforce that law

in the courts. "

 

Thomas Wilner, a lawyer representing several detainees at Guantanamo,

agreed that the law cannot be

enforced. " This is what Guantanamo was about to begin with, a place to

keep detainees out of the

U.S. precisely so they can say they can't go to court, " Wilner said.

 

A spokeswoman for McCain's office did not respond to questions yesterday.

 

Murphy told the judge the military's claims that it switched tactics

to protect Bawazir should not

be believed. He noted that on Jan. 11 -- days after the new law passed

-- the Defense Department

made the identical health determination for about 20 other detainees,

all of whom had been engaged

in the hunger strike.

 

Guantanamo Bay officials deny that the tactics constitute torture.

They wrote in sworn statements

that they are necessary efforts to ensure detainee health. Maj. Gen.

Jay W. Hood, the facility's

commander, wrote that Bawazir's claims of abuse are " patently false. "

 

" In short, he is a trained al Qaida terrorist, who has been taught to

claim torture, abuse, and

medical mistreatment if captured, " Hood wrote. He added that Bawazir

allegedly went to Afghanistan

to train for jihad and ultimately fought with the Taliban against U.S. troops.

 

Navy Capt. Stephen G. Hooker, who runs the prison's detention

hospital, noted that the hunger strike

began on Aug. 8, reached a peak of 131 participants on Sept. 11, and

dropped to 84 on Christmas Day.

After use of the restraint chair began, only five captives continued not eating.

 

Hooker wrote that he suspected Bawazir was purging his food after

feedings. Bawazir weighed 130

pounds in late 2002, according to Hooker, but 97 pounds on the day he

was first strapped to the

chair. As of Sunday, his weight was back to 137 pounds, the government said.

 

Kessler noted with irritation that Hood and Hooker made largely

general claims about the group of

detainees on the hunger strike in defending the switch to the new

force-feeding procedures used on

Bawazir.

 

" I know it's a sad day when a federal judge has to ask a DOJ attorney

this, but I'm asking you --

why should I believe them? " Kessler asked Justice Department attorney

Terry Henry.

 

Henry said he would attempt to gather more information from the

officials but said there was no

legal basis for the court to intervene. Bawazir's weight is back to

normal, his health is " robust "

and he is no longer on a hunger strike, Henry said.

 

© 2006 The Washington Post Company