Los Angeles Times
February 14, 2006
NEW YORK — A draft United Nations report on the detainees at Guantanamo Bay concludes that the U.S. treatment of them violates their rights to physical and mental health and, in some cases, constitutes torture.
It also urges the United States to close the military prison in Cuba and bring the captives to trial on U.S. territory, charging that Washington's justification for the continued detention is a distortion of international law.
The report, compiled by five U.N. envoys who interviewed former prisoners, detainees' lawyers and families, and U.S. officials, is the product of an 18-month investigation ordered by the U.N. Commission on Human Rights. The team did not have access to prisoners at Guantanamo Bay.
Nonetheless, its findings — notably a conclusion that the violent force-feeding of hunger strikers, incidents of excessive violence used in transporting prisoners and combinations of interrogation techniques "must be assessed as amounting to torture" — are likely to stoke U.S. and international criticism of the prison.
Nearly 500 people captured abroad since 2002 in Afghanistan and elsewhere and described by the U.S. as "enemy combatants" are being held at Guantanamo Bay.
"We very, very carefully considered all of the arguments posed by the U.S. government," said Manfred Nowak, the U.N. special rapporteur on torture and one of the envoys. "There are no conclusions that are easily drawn. But we concluded that the situation in several areas violates international law and conventions on human rights and torture."
The draft report, reviewed by the Los Angeles Times, has not been officially released. U.N. officials are in the process of incorporating comments and clarifications from the U.S. government.
In November, the Bush administration offered the U.N. team the same tour of the prison given to journalists and members of Congress, but refused the envoys access to prisoners. Because of that, the U.N. group declined the visit.
Nowak said he did not expect major changes to the report's conclusions and recommendations as a result of the U.S. government's response, though there would be amendments on minor issues.
Navy Lt. Cmdr. J.D. Gordon, a spokesman for the Pentagon, said the Defense Department did not comment about U.N. matters.
The report is not legally binding. But human rights and legal advocates hope the U.N.'s conclusions will add weight to similar findings by rights groups and the European Parliament.
"I think the effect of this will be to revive concern about the government's mistreatment of detainees, and to get people to take another look at the legal basis," said Kenneth Roth, the executive director of Human Rights Watch. "There are lots of lingering questions about how do you justify holding these people."
The report focuses on the U.S. government's legal basis for the detentions as described in its formal response to the U.N. inquiry: "The law of war allows the United States — and any other country engaged in combat — to hold enemy combatants without charges or access to counsel for the duration of hostilities. Detention is not an act of punishment, but of security and military necessity. It serves the purpose of preventing combatants from continuing to take up arms against the United States."
But the U.N. team concluded that there had been insufficient due process to determine whether the more than 750 people who had been detained at Guantanamo Bay since January 2002 were "enemy combatants," and determined that the primary purpose of their confinement was for interrogation, not to prevent them from taking up arms. The U.S. has released or transferred more than 260 detainees from Guantanamo Bay.
It also rejected the premise that "the war on terrorism" exempted the U.S. from international conventions on torture and civil and political rights.
The report said some of the treatment of detainees met the definition of torture under the U.N. Convention Against Torture: The acts were committed by government officials, with a clear purpose, inflicting severe pain or suffering against victims in a position of powerlessness.
The findings also concluded that the simultaneous use of several interrogation techniques — prolonged solitary confinement, exposure to extreme temperatures, noise and light; forced shaving and other techniques that exploit religious beliefs or cause intimidation and humiliation — constituted inhumane treatment and, in some cases, reached the threshold of torture.
Nowak said that the U.N. team was "particularly concerned" about the force-feeding of hunger strikers through nasal tubes that detainees said were brutally inserted and removed, causing intense pain, bleeding and vomiting.
"It remains a current phenomenon," Nowak said.
International Red Cross guidelines state: "Doctors should never be party to actual coercive feeding. Such actions can be considered a form of torture and under no circumstances should doctors participate in them on the pretext of saving the hunger striker's life."
One detainee, a Kuwaiti named Fawzi Al Odah, told his lawyer this month that he stopped his five-month hunger strike under threats of physical abuse.
Thomas B. Wilner, a lawyer at Shearman & Sterling in Washington who has represented 12 Kuwaitis held at Guantanamo Bay, said that Odah told him that in December guards began taking away clothes, shoes and blankets from about 85 hunger strikers.
Wilner said Odah described guards mixing laxatives into the liquid formula they gave to about 40 prisoners through the nose tubes, causing them to defecate on themselves.
Wilner said Odah told him that on Jan. 9, an officer read what he said was an order from Guantanamo Bay's commander, Brig. Gen. Jay W. Hood, stating that hunger strikers would be strapped into a restraint chair and force-fed with thick nasal tubes that would be inserted and removed twice a day. After hearing a neighboring prisoner scream in pain and tell him not to go through it, Odah reluctantly ceased his hunger strike, Wilner said.
"I stopped it because they forced me to stop," Wilner quoted Odah as telling him. "They stopped it through torture."
Pentagon officials said the number of hunger strikers had dropped to four.
Officials have been forcefeeding detainees since August, but they started leaving the long nasal tubes in place in September after detainees complained that having them jammed down their noses to their stomachs and removed twice a day caused intense pain, bleeding, vomiting and fainting, Wilner said.
In January, he said, after harsh treatment resumed and hunger strikers were left strapped in the restraint chair in their own excretions, most gave up their protest.
"It is clear that the government used force to end the hunger strike," Wilner said. "It was brutality purposely applied to them to make them stop."
White House spokesman Scott McClellan dismissed Odah's allegations Thursday.
"Well, yes, we know that Al Qaeda is trained in trying to make wild accusations and so forth," McClellan said in response to a question about Odah. "But the president has made it very clear what the policy is, and we expect the policy to be followed. And he's made it very clear that we do not condone torture, and we do not engage in torture."
Wilner said Odah had not been accused of being part of Al Qaeda.
The International Red Cross is the only party allowed by the U.S. government to have access to prisoners and monitor their physical and mental health, but the organization is forbidden from making its findings public.
The five U.N. envoys are independent experts appointed by the U.N. Commission on Human Rights to examine arbitrary detention, torture, the independence of judges and lawyers, freedom of religion, and the right to physical and mental health.
The five had each been following the situation at Guantanamo Bay since it opened in January 2002.
They decided in June 2004 to do a joint report and asked the U.S. government for access to all detention centers.
"This report is not aimed at criticizing," Nowak said. "It is looking at what international human rights law says about Guantanamo. We are hoping that this report will actually strengthen the dialogue."