[Mb-civic] U.S. Cites Exception in Torture Ban - Washington Post

[William Swiggard]

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.

http://www.washingtonpost.com/wp-dyn/content/article/2006/03/02/AR2006030202054.html?nav=hcmodule
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