By Scott Horton
Special to the Huffington Post
On the night of June 9-10 in 2006, three prisoners held at the Guantánamo prison's Camp Delta died under mysterious circumstances. Military authorities responded by quickly ordering media representatives off the island and blocking lawyers from meeting with their clients. The first official military statements declared the deaths not just suicides -- but actually went so far as to describe them as acts of "asymmetrical warfare" against the United States.
Now a 58-page study prepared by law faculty and students at Seton Hall University in New Jersey starkly challenges the Pentagon's claims. It notes serious and unresolved contradictions within a Naval Criminal Investigative Service (NCIS) report -- which was publicly released only in fragmentary form, two years after the fact -- and declares the military's internal investigation an obvious cover-up. The only question is: of what?
Law Professor Mark Denbeaux, who directed the study, said in an interview that "there are two possibilities here. Either the investigation is a cover-up of gross dereliction of duty, or it is a cover-up of something far more chilling. More than three years later we do not know what really happened." (Read a Q&A with Denbeaux: "'The Most Innocent Explanation Is That This Is Gitmo Meets Lord Of The Flies'".)
The new study exposes how the NCIS report purports that all three prisoners on the prison's Alpha Block did the following to commit suicide:
• Braided a noose by tearing up their sheets and/or clothing.
• Made mannequins of themselves so it would appear to the guards they were asleep in their cells.
• Hung sheets to block the view into the cells.
• Stuffed rags down their own throats well past a point which would have induced involuntary gagging.
• Tied their own feet together.
• Tied their own hands together.
• Hung the noose from the metal mesh of the cell wall and/or ceiling.
• Climbed up on to the sink, put the noose around their necks and release their weight, resulting in death by strangulation.
The study also notes that there has never been any explanation of how the three bodies could have hung in the cells, undiscovered, for at least two hours, when the cells were supposed to be under constant supervision by roving guards and video cameras.
Disturbingly, these facts were collected within the NCIS report -- but without discussion or any effort to make conclusions based on them. Was that because the facts did not fit the conclusions that military leaders had already offered the public and that the investigators were therefore struggling to support -- namely that the prisoners committed suicide? It is not even clear that it would be physically possible for the prisoners to commit suicide consistent with these facts.
One of the Seton Hall study's authors, law student and former sergeant in the 82nd Airborne Division Paul W. Taylor, stated: "We have three bodies and no explanation. How is it possible that all three detainees had shoved rags so far down their own throats that medical personnel could not remove them? One of the dead detainees was scheduled for release from Guantanamo Bay in 19 days. Instead he died in custody."
The Seton Hall study concludes that the NCIS investigators made conclusions completely unsupported by facts. For instance, they concluded that the three prisoners committed suicide as part of a "conspiracy." But, according to the study: "The investigations... fail to present any evidence of a conspiracy. In fact, all other evidence is inconsistent with the conclusion that the detainees conspired."
The Seton Hall study also faults the manner in which military investigators proceeded. "There is reason to suspect that the [NCIS] interviewers designed questions to obtain particular results. The interviewers failed to frame their inquiries neutrally." Moreover, by June 14, 2006, military investigators had informed all four guards assigned to Alpha Block that night, the Alpha Block noncommissioned officer, and the Alpha Block platoon leader that they were suspected of making false official statements and/or failing to obey direct orders. This suggests that NCIS investigators believed they were being consciously misled on key issues. But amazingly, when the final report issued, no disciplinary measures of any sort were recommended.
There was also a large amount of evidence which should have been assembled as a matter of routine, but which is missing from the NCIS report, the new study explains.. Most disturbing is the absence of sworn statements, which should have been prepared immediately after the events in question and then been turned over to investigators. In this case, however, it appears that affected personnel were actually ordered not to prepare such statements. Instead, the Seton Hall study notes that "the Commander assembled three or four of the Alpha guards aside to put together 'the series of events,' and he spoke with each of them for approximately four or five minutes." Amazingly, the military investigation makes no effort to ascertain what was said or done during this meeting at which an effort was evidently made to coordinate accounts.
A videotape of the hallway and common area existed, but is not taken into account in the report. Similarly, no effort appears to have been made to examine radio and telephone communications. Other critical records, including the missing Duty Roster, Detainee Transfer Book and Pass-On Book also do not appear in the report.
When the NCIS report was finally released, it was redacted so heavily as to make it almost incomprehensible. More than a third of the pages were fully redacted, and very few pages were released without some redaction. The NCIS report itself is highly disorganized, without an index or even a chronological progression in its recounting of events. All this appears intended to make review and criticism of the report much more difficult. While the redaction of names of service personnel is appropriate, it is difficult to understand why many other redactions were undertaken.
Human Rights Watch is calling for the release of the unredacted NCIS report. HRW's Joanne Mariner stated, in response to a request for comment, that "the heavy-handed nature of the redactions to the publicly-released reports of the investigations makes it impossible to get a clear picture of the events of that night. We think that the heavy redactions currently found in the documents -- by which names, dates, and other key facts are completely obscured on many pages -- raise concerns about whether the military is trying to hide embarrassing facts."
The Seton Hall study also points to a large number of violations of Guantánamo's standard operating procedures that appear in the investigation, many of which are linked directly to the deaths. Although the NCIS investigation flags many of these violations, no disciplinary action of any sort was taken. The Seton Hall study sees evidence of a "camp in disarray." Professor Denbeaux notes "guards not on duty, detainees hanging dead in their cells for hours and guards leaving their posts to eat the detainees' leftover food." He sees the failure to take disciplinary measures as further evidence of a cover-up. Denbeaux stresses that his review not only leaves serious doubt as to the military's conclusions that the deaths were suicides, it also exposes gross misconduct by camp guards and others that went undisciplined.
The study is the eleventh in a series of reports by the Seton Hall Law School examining issues related to the detention regime at Guantanamo and establishing that a number of Pentagon claims about Guantanamo and the prisoners held there are pure myths. One earlier report established that over 80% of the prisoners were captured not by Americans on the battlefield but by Pakistanis and Afghans, often in exchange for bounty payments. Another demonstrated that the Guantanamo Combat Status Review Tribunals consistently failed to follow their own rules and were frequently convened for purposes of overturning determinations made by earlier tribunals that prisoners were not enemy combatants. Another debunked Bush Administration claims denying the existence of tapes of prisoner interrogations, and demonstrated that 24,000 such tapes were made, together with extensive notes based on them.
This latest study comes shortly after the resignation of the Obama Administration's two top officials responsible for detainee issues: White House counsel Greg Craig and Deputy Assistant Secretary of Defense Phil Carter.
A senior Pentagon official, asked about the report on Sunday, did not have an immediate response, but said one might be forthcoming. This post will be updated if and when the Pentagon has a statement.
READ the report below:
About Scott Horton
Scott Horton is a contributing editor at Harper's Magazine, where he writes on law and national security issues, an adjunct professor at Columbia Law School, where he teaches international private law and the law of armed conflict, and a frequent contributor to the Huffington Post. A life-long human rights advocate, Scott served as counsel to Andrei Sakharov and Elena Bonner, among other activists in the former Soviet Union. He is a co-founder of the American University in Central Asia, where he currently serves as a trustee. Scott recently led a number of studies of issues associated with the conduct of the war on terror, including the introduction of highly coercive interrogation techniques and the program of extraordinary renditions for the New York City Bar Association, where he has chaired several committees, including, most recently, the Committee on International Law. He is also an associate of the Harriman Institute at Columbia University, a member of the board of the National Institute of Military Justice, Center on Law and Security of NYU Law School, the EurasiaGroup and the American Branch of the International Law Association and a member of the Council on Foreign Relations. He co-authored a recent study on legal accountability for private military contractors, Private Security Contractors at War. He appeared at an expert witness for the House Judiciary Committee three times in the past two years testifying on the legal status of private military contractors and the program of extraordinary renditions and also testified as an expert on renditions issue before an investigatory commission of the European Parliament.