U.S. Cites Exception in Torture Ban

Attorneys say Mohammed Bawazir, detained in Guantanamo Bay, Cuba, prison, above, was subjected to tactics amounting to torture.
Attorneys say Mohammed Bawazir, detained in Guantanamo Bay, Cuba, prison, above, was subjected to tactics amounting to torture. (By Joe Skipper -- Reuters)

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By Josh White and Carol D. Leonnig
Washington Post Staff Writers
Friday, March 3, 2006

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.


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