Establishing a case for murder — and the disclosure of a secret prison at Guantánamo
The key to the discovery of the murder of the three men — 37-year old Salah Ahmed al-Salami, a Yemeni, 30-year old Mani Shaman al-Utaybi, a Saudi, and 22-year old Yasser Talal al-Zahrani (photo, left), a Saudi who was just 17 when he was captured — is Army Staff Sgt. Joe Hickman, a former Marine who reenlisted in the Army National Guard after the 9/11 attacks, and was deployed to Guantánamo in March 2006, with his friend, Specialist Tony Davila. On arrival, Davila was briefed about the existence of “an unnamed and officially unacknowledged compound,” outside the perimeter fence of the main prison, and explained that one theory about it was that “it was being used by some of the non-uniformed government personnel who frequently showed up in the camps and were widely thought to be CIA agents.”
Hickman and Davila became fascinated by the compound — known to the soldiers as “Camp No” (as in, “No, it doesn’t exist”) — and Hickman was on duty in a tower on the prison’s perimeter on the night the three men died, when he noticed that “a white van, dubbed the ‘paddy wagon,’ that Navy guards used to transport heavily manacled prisoners, one at a time, into and out of Camp Delta, [which] had no rear windows and contained a dog cage large enough to hold a single prisoner,” had called three times at Camp 1, where the men were held, and had then taken them out to “Camp No.” All three were in “Camp No” by 8 pm.
At 11.30, the van returned, apparently dropping something off at the clinic, and within half an hour the whole prison “lit up.” As Horton explains:
Hickman headed to the clinic, which appeared to be the center of activity, to learn the reason for the commotion. He asked a distraught medical corpsman what had happened. She said three dead prisoners had been delivered to the clinic. Hickman recalled her saying that they had died because they had rags stuffed down their throats, and that one of them was severely bruised. Davila told me he spoke to Navy guards who said the men had died as the result of having rags stuffed down their throats.
As Horton also explains:
The presence of a black site at Guantánamo has long been a subject of speculation among lawyers and human-rights activists, and the experience of Sergeant Hickman and other Guantánamo guards compels us to ask whether the three prisoners who died on June 9 were being interrogated by the CIA, and whether their deaths resulted from the grueling techniques the Justice Department had approved for the agency’s use — or from other tortures lacking that sanction.
Complicating these questions is the fact that Camp No might have been controlled by another authority, the Joint Special Operations Command, which Bush’s defense secretary, Donald Rumsfeld, had hoped to transform into a Pentagon version of the CIA. Under Rumsfeld’s direction, JSOC began to take on many tasks traditionally handled by the CIA, including the housing and interrogation of prisoners at black sites around the world.
The construction of the “suicide” narrative, and the widespread cover-up
This is disturbing enough, of course, and should lead to robust calls for an independent inquiry, but the problem may be that almost every branch of the government appears to be implicated in the cover-up that followed the deaths.
As Horton describes it, an official “suicide” narrative was soon established, and widely accepted by the media, if not by former prisoners and the dead men’s families. With extraordinary cynicism, Rear Admiral Harry Harris, the commander at Guantánamo, not only declared the deaths “suicides,” but added, “I believe this was not an act of desperation, but an act of asymmetrical warfare waged against us.” What was not mentioned were the rags stuffed into the prisoners’ mouths, even though this knowledge was widespread throughout the prison. Horton adds that when Col. Mike Bumgarner, the warden at Guantánamo, held a meeting the following morning, “the news had circulated through Camp America that three prisoners had committed suicide by swallowing rags.”
He also states:
According to independent interviews with soldiers who witnessed the speech, Bumgarner told his audience that “you all know” three prisoners in the Alpha Block at Camp 1 committed suicide during the night by swallowing rags, causing them to choke to death … But then Bumgarner told those assembled that the media would report something different. It would report that the three prisoners had committed suicide by hanging themselves in their cells. It was important, he said, that servicemen make no comments or suggestions that in any way undermined the official report. He reminded the soldiers and sailors that their phone and email communications were being monitored.
Despite being “on-message,” Bumgarner let slip to two visiting reporters from a US provincial newspaper — the only ones who were not immediately hustled off the base — that each of the men who had died “had a ball of cloth in their mouth either for choking or muffling their voices.” As punishment for straying off the script, Bumgarner was soon suspended, and had his office searched by the FBI.
Just as cynical were the authorities’ attempts to silence the prisoners and their attorneys. The Naval Criminal Investigative Service (NCIS), which was assigned to investigate the deaths, confiscated every single piece of paper in the possession of the prisoners, and, a few weeks later, “sought an after-the-fact justification.” As Horton explains:
The Justice Department — bolstered by sworn statements from Admiral Harris and from Carol Kisthardt, the special agent in charge of the NCIS investigation — claimed in court that the seizure was appropriate because there had been a conspiracy among the prisoners to commit suicide. [The] Justice [Department] further claimed that investigators had found suicide notes and argued that the attorney-client materials were being used to pass communications among the prisoners.
It is now apparent that the authorities were desperate to ensure that no word of the events of June 9 was disclosed from prisoners to their attorneys. As David Remes, the attorney for 16 Yemenis, explained, the effect of the seizure “sent an unmistakable message to the prisoners that they could not expect their communications with their lawyers to remain confidential,” but as part of its mission to blame attorneys for the deaths, the authorities went so far as to claim that Clive Stafford Smith, the director of the legal action charity Reprieve, had persuaded another prisoner, the British resident Shaker Aamer, to call for the deaths from his cell. Speaking to the BBC’s Newsnight in October 2006, Zachary Katznelson, an attorney at Reprieve, explained that he was told by one of his clients in Guantánamo in August 2006 that interrogators were trying to blame Stafford Smith, saying that “it was Clive’s idea, Clive’s brainchild, that people had to commit suicide to bring attention to the base and to then force the government to close it.”
As Horton reveals, far from being the mastermind of a triple suicide, Shaker Aamer was himself beaten severely on the night of the deaths. As I have explained in previous articles, Aamer, an eloquent, charismatic man, who stood up relentlessly for the prisoners’ rights, was regarded as a leader within Guantánamo by both the prisoners and the prison authorities. Held in solitary confinement after the suppression of a short-lived Prisoners’ Council, convened in the summer of 2005, for which he was the Secretary, he was, nevertheless beaten severely for two and a half hours on the evening of June 9, around the same time that the three other men were in “Camp No.”
As Horton also notes:
The United Kingdom has pressed aggressively for the return of British subjects and persons of interest. Every individual requested by the British has been turned over, with one exception: Shaker Aamer. In denying this request, US authorities have cited unelaborated “security” concerns. There is no suggestion that the Americans intend to charge him before a military commission, or in a federal criminal court, and, indeed, they have no meaningful evidence linking him to any crime. American authorities may be concerned that Aamer, if released, could provide evidence against them in criminal investigations. This evidence would include what he experienced on June 9, 2006 …
In the years following the deaths in June 2006, every official response has been a whitewash. The NCIS reluctantly produced a report in August 2008, accompanied by a brief and unenlightening statement, which I discussed here, and in December 2009 the Seton Hall Law School produced a devastating analysis of the flawed report, which, as Scott Horton explains, “made clear why the Pentagon had been unwilling to make its conclusions public. The official story of the prisoners’ deaths was full of unacknowledged contradictions, and the centerpiece of the report — a reconstruction of the events — was simply unbelievable.”
As for the accounts of Sgt. Hickman and three other men (including Specialist Davila), Horton explains that they offered their accounts willingly and were not approached to do so. The trigger was Hickman, whose tour of duty ended in March 2007. As Horton describes it, however, “he could not forget what he had seen at Guantánamo. When Barack Obama became president, Hickman decided to act. ‘I thought that with a new administration and new ideas I could actually come forward,’ he said. ‘It was haunting me.’”
The cover-up continues
Hickman approached Mark Denbeaux of Seton Hall, and his son Josh (also a lawyer), and told his story, followed by the other three men. However, although the Denbeauxs approached the Justice Department, and had a meeting in February last year with Rita Glavin, the acting head of the Justice Department’s Criminal Division, John Morton, soon to be an assistant secretary at the Department of Homeland Security, and Steven Fagell, counselor to the head of the Criminal Division, little came of it. After hearing the whole sordid story, the officials thanked the Denbeauxs for “not speaking to reporters first and for ‘doing it the right way,’” and, two days later, Mark Denbeaux was called by Teresa McHenry, the head of the Criminal Division’s Domestic Security Section, who told him that she was starting an investigation and wanted to meet directly with Hickman.
Hickman met McHenry, and gave her the names and contact details of corroborating witnesses, but then the trail went cold. In April, “an FBI agent called to say she did not have the list of contacts” and “asked if this document could be provided again,” and soon after, Steven Fagell and two FBI agents interviewed Davila, who had left the Army, and asked him if he would travel to Guantánamo to identify the locations of various sites. “It seemed like they were interested,” Davila told Horton. “Then I never heard from them again.”
In late October, as Mark Denbeaux was preparing to unveil the Seton Hall report, there was brief communication with McHenry again, but on November 2, she called to say that the investigation was being closed:
“It was a strange conversation,” Denbeaux recalled. McHenry explained that “the gist of Sergeant Hickman’s information could not be confirmed.” But when Denbeaux asked what that “gist” actually was, McHenry declined to say. She just reiterated that Hickman’s conclusions “appeared” to be unsupported. Denbeaux asked what conclusions exactly were unsupported. McHenry refused to say.
Horton notes correctly that “the Justice Department has plenty of its own secrets to protect,” because it “would seem to have been involved in the cover-up from the first days, when FBI agents stormed Colonel Bumgarner’s quarters,” which was “unusual.” He also explains that, when the Justice Department sought court approval for the NCIS seizure of all the prisoners’ letters:
US District Court Judge James Robertson gave the Justice Department a sympathetic hearing, and he ruled in its favor, but he also noted a curious aspect of the government’s presentation: its “citations supporting the fact of the suicides” were all drawn from media accounts. Why had the Justice Department lawyers who argued the case gone to such lengths to avoid making any statement under oath about the suicides? Did they do so in order to deceive the court? If so, they could face disciplinary proceedings or disbarment.
In addition, Horton notes the role played by lawyers in the Justice Department’s Office of Legal Counsel, who, of course, “had been deeply involved in the process of approving and setting the conditions for the use of torture techniques, issuing a long series of memoranda [widely known as the ‘torture memos’] that CIA agents and others could use to defend themselves against any subsequent criminal prosecution.” Pointing a finger at Teresa McHenry, he explains that, “As a former war-crimes prosecutor, McHenry knows full well that government officials who attempt to cover up crimes perpetrated against prisoners in wartime face prosecution under the doctrine of command responsibility,” and quotes Rear Admiral John Hutson, the former judge advocate general of the Navy, who told him:
Filing false reports and making false statements is bad enough, but if a homicide occurs and officials up the chain of command attempt to cover it up, they face serious criminal liability. They may even be viewed as accessories after the fact in the original crime.
In conclusion, Horton suggests that everyone charged with accounting for what happened on June 9, 2006 — the prison command, the civilian and military investigative agencies, the Justice Department, and Attorney General Eric Holder — “face a choice between the rule of law and the expedience of political silence,” and, to date, have chosen the latter.
In passing, he mentions that the death of another prisoner in June last year — a 31-year old Yemeni named Muhammad Salih — also raises disturbing questions (as was reported by former prisoner Binyam Mohamed in an op-ed for the Miami Herald), and to this he could have added that the death of another Saudi, Abdul Rahman al-Amri, on May 30, 2007, also remains suspicious.
I urge you to read the whole report, as this précis has been little more than a way for me to try and grasp the main points presented in the article, which contains much more detailed and disturbing information, including shocking information about the autopsy (and information about the torture to which the men were clearly subjected), a touching meeting with Yasser al-Zahrani’s father, General Talal al-Zahrani, and a detailed reiteration of some other important facts — that none of the three men killed in June 2006 had any connection to terrorism, and that two had been cleared for release, but had not been told.
Despite studying Guantánamo on a full-time basis for nearly four years, this is one of the most chilling accounts of the prison that I have ever read, and one which should not only lead to an independent inquiry, but also to calls to press ahead with the closure of Guantánamo — and the repatriation of as many prisoners as possible — without further delay.
Scott Horton doesn’t ask another pertinent question — whether it is feasible that the three men died as a result of “enhanced interrogations” that went too far, or whether they were deliberately murdered. The panic that greeted the arrival of the corpses at the clinic on that dreadful day suggests the former, but on reflection it seems unlikely that three accidental deaths could occur in such a short space of time. As Guantánamo takes on a new name — the Death Camp — these doubts need to be addressed one way or another. Neither murder nor manslaughter is acceptable, of course, but neither is it acceptable for this disgraceful cover-up to continue.
As Yasser al-Zahrani’s father explained to Horton:
The truth is what matters. They practiced every form of torture on my son and on many others as well. What was the result? What facts did they find? They found nothing. They learned nothing. They accomplished nothing.
Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.
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