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Jack Rice - Blog

Jack Rice is a criminal defense trial lawyer who provides legal advice to those charged with crimes in Federal and Minnesota State courtrooms.

 

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In Preparation for Jack's Reports, Some Basic Historical Information about Guantanamo Bay, Cuba. Part 3.

In order to prepare for Jack's travels to Guantanamo Bay, we thought it might be helpful to provide a little background.

The first segment, posted previously, will provide a brief oversight about GTMO, where it is located, and how the U.S. acquired it in the first place. The second segment, posted previously, will focus upon the Naval Base itself. This posting will provide some information regarding the detention camp that is the topic of much of the debate in Washington DC as we speak.

Jack has not had the chance to verify all of the information supplied by Wikipedia. So, you will need to cross reference yourself. However, it should provide a good starting part and overview.

According to Wikipedia:

Guantánamo Bay detainment camp, serving as a joint military prison and interrogation center under the leadership of Joint Task Force Guantanamo (JTF-GTMO), has occupied a portion of the United States Navy's base at Guantanamo Bay, Cuba since 2002.[1] The prison holds people suspected by the Executive branch of the U.S. government of being al-Qaeda and Taliban operatives, along with some people no longer considered suspects who are being held pending relocation elsewhere. The prisoners were captured in Afghanistan and elsewhere around the world.

The detainment areas consist of three camps in the base: Camp Delta (which includes Camp Echo), Camp Iguana, and the now-closed Camp X-Ray. The facility is often referred to as Guantanamo, Gitmo (derived from the abbreviation "GTMO" ), or Camp X-Ray.[2]

The camp has drawn strong criticism both in the U.S. and world-wide for its detainment of prisoners without trial, and allegations of torture. The detainees held by the United States were classified as "enemy combatants". The U.S. administration had claimed that they were not entitled to the protections of the Geneva Convention, but the U.S. Supreme Court ruled against this interpretation on June 19, 2006. Following this, on July 7, 2006 the Department of Defense issued an internal memo stating that prisoners will in the future be entitled to protection under the Geneva Conventions.[3][4][5]

On September 6, 2006, President Bush announced that fourteen suspected terrorists are to be transferred to the Guantanamo Bay detainment camp and admitted that these suspects have been held in CIA black sites. These people include Khalid Sheik Mohammed, believed to be the No. 3 al-Qaida leader before he was captured in Pakistan in 2003; Ramzi Binalshibh, an alleged would-be Sept. 11, 2001, hijacker; and Abu Zubaydah, who was believed to be a link between Osama bin Laden and many al-Qaida cells before he was also captured in Pakistan, in March 2002.[6]None of the 14 top figures transferred to Guantanamo from CIA custody had been charged until September 11, 2006.[7]

History
In the last quarter of the 20th century, the Guantanamo Bay Naval Base was used to house Cuban and Haitian refugees intercepted on the high seas. In the early 1990s, it held refugees who fled Haiti after military forces overthrew democratically elected President Jean-Bertrand Aristide. These refugees were held in a detainment area called Camp Bulkeley until United States District Court Judge Sterling Johnson Jr. declared the camp unconstitutional on 8 June 1993. The last Haitian migrants departed Guantánamo on 1 November 1995.

The Migrant Operations Center on Guantánamo typically keeps fewer than 30 people interdicted at sea in the Caribbean region.

On June 16, 2005, the United States Department of Defense announced that a unit of defense contractor Halliburton will build a new $30 million detention facility and security perimeter around the base.

Statistics
Also see List of Detainees.


On September 22, 2004 ten prisoners were brought from Afghanistan. A total of 242 detainees had been moved out of Guantánamo as of July 20, 2005, including 173 that were released, and 69 transferred to the governments of other countries, according to the United States Department of Defense.[8]

As of November 7, 2005, 358 of the 505 detainees then held at Guantánamo Bay had had Administrative Review Board hearings, according to a November 12, 2005, report by the Wall Street Journal. Of these, 3 percent were granted and awaiting release, 20 percent were to be transferred, 37 percent were to be further detained at Guantánamo, and no decision had been made in 40 percent of the cases. Of the 505 detainees, 100 or more are from Saudi Arabia, about 80 from Yemen, about 65 from Pakistan, about 50 from Afghanistan, two from Syria and one from Australia.


A Camp Delta recreation and exercise area at Guantánamo Bay, Cuba. The detention block is shown with sunshades drawn on December 3, 2002.From 2002 to 2006 there have been several hunger strikes at Guantánamo Bay, with up to 200 participants according to some reports.[9] Numerous participants were being force-fed through a feeding tube when their health and lives became in danger. The Australian reports that as of May 30, 2006, the number of detainees on hunger strike is 75.[10]


Facilities

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Camp Delta
composed of detention camps 1, 2, 3, 4, 5, 6 and Camp Echo, is a 612-unit detention center built between February 27 and mid-April 2002. Most of the security force there is U.S. Army military police, and U.S. Navy Master-at Arms. Camp Echo, part of the Camp Delta compound, is a detention center where pre-commissions are held — its detainees may talk privately to lawyers.
Camp Iguana
a smaller, low-security compound, located about a kilometer from the main prison compound. In 2002 and 2003, it housed three detainees who were under age 16, and was closed when they were flown home in January 2004. The compound was reopened in mid-2005 to house some of the 38 detainees who were determined by the Combatant Status Review Tribunals not to actually be "illegal combatants". Those who could not safely be repatriated to their home country were moved to Camp Iguana.
Camp X-Ray
was a temporary detention facility, closed on April 29, 2002, and its prisoners transferred to Camp Delta. But the term "Camp X-Ray" is sometimes still used as a synonym for the entire facility where suspected (and formerly mistakenly suspected) Al Qaeda and Taliban "illegal combatants" are detained.


Controversy
Actions of the U.S. Government


The status of this prison, above political beliefs, is not clear and may be against Human Rights and democratic ethics and laws, although U.S. courts have partially accepted the status of the prison as existing outside many of the U.S. laws, with the caveat that additional rights be provided regarding due process. In June 2006, the U.S. Supreme Court further restricted the Bush administration's use of military tribunals to try the detainees.

The Executive branch of the U.S. government has classified the detainees in Camp X-Ray as "enemy combatants," rather than prisoners of war (POWs), which they claim means that they do not have to be conferred the rights granted to POWs under the Geneva Conventions. The U.S. government justifies this designation by claiming that they do not have the status of either regular soldiers nor that of guerrillas, and they are not part of a regular army or militia.

In July 2003, about 680 alleged Taliban members and suspected Al-Qaeda terrorists from 42 different countries were incarcerated there. None have been allowed to meet with attorneys.

On April 23, 2003, the U.S. military reported that three of the Afghan war prisoners held at Camp Delta had been identified as juveniles, were separated from the adult prisoners, and moved to markedly better conditions at Camp Iguana. Civil rights lawyer Clive Stafford Smith wrote an article where he cited reports of a further dozen minors detained in the adult portion of the prison. Smith asserted that there were twenty or more minors detained in Guantanamo. When the DoD released what it called its final list of all the detainees who had been held in military custody at Guantanamo there were dozens of detainess who would have been minors when captured, who were housed in the adult portion of the prison, in violation of international law.

Main article: minors detained in the global war on terror
On July 23, 2003, U.S. Major General Geoffrey Miller said that three-quarters of the roughly 660 detainees had confessed to some involvement in terrorism. Many have informed about friends and colleagues. According to Miller, the confessions were acquired through rewards that included extended recreation time, extra food rations to keep in their cells, or a move to the prison's medium-security facility.

On June 12, 2006, Sen Arlen Specter stated to CNN that the arrests of most of the roughly 500 prisoners held there were based on "the flimsiest sort of hearsay".[11]


Conditions at the camp

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Physical conditions for detainees at Camp Delta meet basic standards for maintaining health[citation needed]. Prisoners are held in small mesh-sided cells with little privacy, and lights are kept on day and night. Detainees are said to have rations similar to those of American forces, with consideration for Muslim dietary needs. James Yee, a Muslim chaplain from the United States Army, provided religious services, but has now resigned after unproven allegations were brought against him by the United States, following his tour of duty at Guantánamo Bay. These charges include sedition, aiding the enemy, espionage — although it was never declared on whose behalf, and failure to obey a general order. He was then transferred to a United States Navy brig in Charleston, South Carolina. Later, the charges were dropped. He states that he resigned because no apology was given, nor was there an acknowledgement of error by the United States.[citation needed]

Demonstration against what is done in Guantanamo Bay detention center, Washington D.C.Detainees are kept in isolation most of the day, are blindfolded when moving into Camp Delta and from place to place within the camp, and forbidden to talk in groups of more than three. American doctrine in dealing with prisoners of war state that isolation and silence are effective means in breaking down the will to resist interrogation. There have been allegations of torture, including sleep deprivation, the use of so-called truth drugs, beatings, locking in confined and cold cells, and being forced to maintain uncomfortable postures. It has been alleged that SERE (Survival, Evasion, Resistance, Escape) program's chief psychologist, Colonel Morgan Banks, issued guidance in early 2003 for the behavioral science consultants who helped to devise Guantánamo's interrogation strategy. SERE is a program based in Fort Bragg, North Carolina.[citation needed]

In April 2006 it was discovered that several detainees had managed to secretly grow vegetables from seeds garnered from their meals, creating a makeshift garden in violation of camp regulations.[12]


Criticisms

The use of Guantánamo Bay as a military prison has drawn fire from human rights organizations and other critics, who cite reports that detainees have been tortured [13] or otherwise poorly treated. Supporters of the detention argue that trial review of detentions has never been afforded to prisoners of war, and that it is reasonable for enemy combatants to be detained until the cessation of hostilities. However, the detainees' status as potential or active terrorists, and the lack of any ratified treaties regarding treatment of captured terrorists, makes the situation particularly complicated. The Bush administration argued that the Third Geneva Convention does not apply to perceived Al Qaeda or Taliban fighters, since the Geneva convention only applies to uniformed soldiers of a recognized government.[citation needed] Critics of U.S. policy say the government has violated the Conventions in attempting to create a distinction between 'prisoners of war' and 'illegal combatants'.[14] A U.S. district court partially agreed with the Bush administration, finding that the Geneva Conventions apply to Taliban fighters, but not to Al Qaeda terrorists.[15]

Amnesty International and the United Nations have called the situation "a human rights scandal" in a series of reports.[16]

Member states of the European Union and the Organization of American States, as well as non-governmental organizations such as Amnesty International have protested the legal status and physical condition of detainees at Guantánamo. Courts in the United States and the United Kingdom have been approached by relatives and friends of detainees to request a legal determination favorable to detainees.

The human rights organization Human Rights Watch has criticized the Bush administration over this designation in its 2003 world report, stating: "Washington has ignored human rights standards in its own treatment of terrorism suspects. It has refused to apply the Geneva Conventions to prisoners of war from Afghanistan, and has misused the designation of 'illegal combatant' to apply to criminal suspects on U.S. soil."

On May 25, 2005, Amnesty International released its annual report calling the facility the "gulag of our times", even using the expression "The Gulag Archipelago" to design to the whole of the black sites:

"Guantánamo has become the gulag of our times, entrenching the notion that people can be detained without any recourse to the law. If Guantánamo evokes images of Soviet repression, "ghost detainees" – or the incommunicado detention of unregistered detainees - bring back the practice of "disappearances" so popular with Latin American dictators in the past. According to U.S. official sources there could be over 100 ghost detainees held by the U.S."[17]
Lord Steyn, a prominent judge in the United Kingdom, was quoted in the British newspaper The Independent on November 26, 2003 regarding the planned trial of some prisoners by military tribunal:

As a lawyer brought up to admire the ideals of American democracy and justice, I would have to say that I regard this a monstrous failure of justice. The military will act as interrogators, prosecutors and defence counsel, judges, and when death sentences are imposed, as executioners. The trials will be held in private. None of the guarantees of a fair trial need be observed.
At the beginning of December 2003, there were media reports that military lawyers appointed to defend alleged terrorists being held by the United States at Guantánamo Bay had expressed concern about the legal process for military commissions. The Guardian newspaper from the United Kingdom[18] reported that a team of lawyers was dismissed after complaining that the rules for the forthcoming military commissions prohibited them from properly representing their clients. New York's Vanity Fair reported that some of the lawyers felt their ethical obligations were being violated by the process. The Pentagon strongly denied the claims in these media reports.

The New York Times and other newspapers are critical of the camp; columnist Thomas Friedman urged George W. Bush to "just shut it down":

[The Camp Delta] has become worse than an embarrassment. I am convinced that more Americans are dying and will die if we keep the Gitmo prison open than if we shut it down. So, please, Mr. President, just shut it down.[19]
Later, another New York Times editorial supported Friedman's proposal:

What makes Amnesty's gulag metaphor apt is that Guantánamo is merely one of a chain of shadowy detention camps that also includes Abu Ghraib in Iraq, the military prison at Bagram Air Base in Afghanistan and other, secret locations run by the intelligence agencies. Each has produced its own stories of abuse, torture and criminal homicide. These are not isolated incidents, but part of a tightly linked global detention system with no accountability in law. Prisoners have been transferred from camp to camp. So have commanding officers. And perhaps not coincidentally, so have specific methods of mistreatment.[20]
On 19 November 2005, a group of experts from the Commission on Human Rights at the United Nations called off their visit to Camp Delta, originally scheduled for 6 December, saying that the United States was not allowing them to conduct private interviews with the prisoners. "Since the Americans have not accepted the minimum requirements for such a visit, we must cancel [it]," Manfred Nowak, the UN envoy in charge of investigating torture allegations around the world, told AFP. The group nevertheless stated its intention to write a report on conditions at the prison based on eyewitness accounts from released detainees, meetings with lawyers and information from human rights groups.[21] [22]

On February 15, 2006 the UN group released their report which called on the U.S. either to release all suspected terrorists or to try them. The report, issued by the Working Group on Arbitrary Detention, has the subtitle Situation of detainees at Guantánamo Bay. and includes, as an appendix, the U.S. ambassador's reply to the draft versions of the report in which he restates the U.S. government's position on the detainees.[23]

European leaders have also voiced their opposition to the detention center. On January 13, 2006, German Chancellor Angela Merkel, herself being raised in repressive East-Germany where similar practices were used, criticized the U.S. detention of prisoners at Guantánamo Bay and the "interrogation technique" known as "waterboarding", calling it a form of torture: "An institution like Guantánamo in its present form cannot and must not exist in the long term. We must find different ways of dealing with prisoners. As far as I'm concerned there's no question about that.", she declared in a January 9 interview to Der Spiegel.[24] [25] Meanwhile in the UK, Peter Hain, the Northern Ireland Secretary, stated during a live broadcast of Question Time (February 16, 2006) that: "I would prefer that it wasn't there and I would prefer it was closed." His cabinet colleague and Prime Minister, Tony Blair, declared the following day that the centre was "an anomaly and sooner or later it's got to be dealt with." [26] On 10 March 2006, a letter in The Lancet is published, signed by more than 250 medical experts urging the United States to stop force-feeding of detainees and close down the prison. Force-feeding is specifically prohibited by the World Medical Association force-feeding in the declarations of Tokyo and Malta, to which the American Medical Association is a signatory. Dr David Nicholl who had initiated the letter stated that the definition of torture as only actions that cause "death or major organ failure" was "not a definition anyone on the planet is using".[27] [28]

In May 2006, the UK Attorney General Lord Goldsmith said the camp's existence was "unacceptable" and tarnished the U.S. traditions of liberty and justice. "The historic tradition of the United States as a beacon of freedom, liberty and of justice deserves the removal of this symbol," he said. [29]

In June 2006 the European Parliament voted overwhelmingly in support of a motion urging the United States to close the camp.[30]

In September 2006 the UK's Lord Chancellor, Lord Falconer, who heads the UK's legal system, went further than previous British government statements, condemning the existence of the camp as a "shocking affront to democracy". Lord Falconer, who said he was expressing Government policy, made the comments in a lecture at the Supreme Court of New South Wales. [31]


Prisoner complaints and alleged torture

Three British prisoners, now known in the media as the "Tipton Three", were released in 2004 without charge. Represented by the Center for Constitutional Rights, the three have alleged ongoing torture, sexual degradation, forced drugging and religious persecution being committed by U.S. forces at Guantánamo Bay. The prisoners have released a 115-page dossier detailing these accusations.[32] They have also accused British authorities of knowing about the alleged torture and failing to respond.

The accounts of the British prisoners have been reiterated by two former French prisoners, a former Swedish prisoner, and a former Australian prisoner.

Former Guantánamo detainee, the Swede Mehdi Ghezali was freed on July 9, 2004 after two and half years internment. Ghezali has claimed that he was the victim of repeated torture. His lawyer has declared that he intends to sue the U.S. for their treatment of him.

Former Guantánamo detainee Moazzam Begg, freed in January, 2005, after nearly three years in captivity, has accused his American captors of torturing him and other detainees arrested in Afghanistan and Pakistan.[33] Mr Begg, in his first broadcast interview since his release, claimed he "witnessed two people get beaten so badly that I believe it caused their deaths". Begg's account though is at odds with his signed statement given to FBI agents after his capture in February 2002. In his statement he admitted to having attended three different Al-Qaeeda terrorist training camps in Afghanistan where he learnt how to use AK-47 assault rifles and the use of rocket propelled grenades and primitive homemade explosives. Begg admitted he was "prepared to fight with the Taliban and Al-Qaeeda against the US and others" Daily Telegraph, March 9, 2006[1]

An Associated Press report asserted that some of the detainees were turned over to the United States by Afghan tribesmen in return for cash rewards. Detainees testified during military tribunals that bounties ranged from $3,000 to $25,000. The allegations were in transcripts the U.S. government released in compliance with a Freedom of Information lawsuit filed by AP.[34] There has not been independent confirmation of any of the above allegations since the U.S. government prohibits investigation by any third party.[35]

Forced feeding accusations by hunger-striking detainees began around the beginning of Autumn, 2005: "Detainees said large feeding tubes were forcibly shoved up their noses and down into their stomachs, with guards using the same tubes from one patient to another. The detainees say no sedatives were provided during these procedures, which they allege took place in front of U.S. physicians, including the head of the prison hospital."[36][37] "A hunger striking detainee at Guantánamo Bay wants a judge to order the removal of his feeding tube so he can be allowed to die, one of his lawyers has said."[38] Within a few weeks, the Department of Defense "extended an invitation to United Nations Special Rapporteurs to visit detention facilities at Guantánamo Bay Naval Station".[39][40] This was rejected by the U.N. considering the restrictions "that [the] three human rights officials invited to Guantánamo Bay wouldn't be allowed to conduct private interviews" with prisoners. [41] Simultaneously, media reports ensued surrounding the question of prisoner treatment.[42] [43] [44] "District Court Judge Gladys Kessler also ordered the U.S. government to give medical records going back a week before such feedings take place."[45] In early November, 2005, the U.S. suddenly accelerated, for unknown reasons, the rate of prisoner release, but this was unsustained. [46] [47] [48] [49]

In December 2005, Amnesty International published the account of Juma Al Dossary, a 32-year-old Bahraini national. Al Dossary says in three years he has been interrogated some 600 times, fed rotten food, beaten many times (by up to eight guards at once), made to walk on broken glass and pushed so that his face hit the glass shards, made to walk on barbed wire, and has had cigarettes put out on his body. He also reports frequent sexual assaults and other degrading treatment, similar to what has been reported from Abu Ghraib. [50]

In February 2006, Australian prisoner David Hicks also made allegations of torture and mistreatment in Guantánamo Bay. In July 2003, Hicks was one of six detainees first determined by President George W. Bush to be eligible for trial by a military court. Almost three years later, no trial has commenced.

According to detailed accounts reported by the New York Times on June 24, 2005, from former interrogators, military doctors have assisted with refinement of the techniques interrogators have used on detainees, including advice on how to incrementally adjust psychological duress levels and manipulate fears, as a means of attempting to make the detainees more cooperative and willing to provide information.[51] It has been alleged that SERE (Survival, Evasion, Resistance, Escape) program's chief psychologist, Col. Morgan Banks, issued guidance in early 2003 for the "behavioral science consultants" who helped to devise Guantánamo's interrogation strategy. SERE is a program based in Fort Bragg, North Carolina.

A related article in the New England Journal of Medicine reported doctors involved with devising and supervising the interrogations indicated they understood the interrogation procedure refinements they gave advice on were designed to increase fear and distress, as a means to obtaining intelligence. Pentagon spokesman Bryan Whitman, while declining to address the specifics of the doctors' accounts, responded by asserting the doctors were not covered by ethics rules, since they were advising interrogators as behavioral scientists rather than treating patients.

According to a June 21, 2005 New York Times opinion article,[52] on July 29, 2004 an FBI agent was quoted as saying, "On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they had urinated or defecated on themselves and had been left there for 18, 24 hours or more."

Air Force Lt. Gen. Randall Schmidt, who headed the probe into FBI accounts of abuse of Guantánamo prisoners by Defense Department personnel, concluded the man (a Saudi, described as the "20th hijacker") was subjected to "abusive and degrading treatment" due to "the cumulative effect of creative, persistent and lengthy interrogations." The techniques used were authorized by the Pentagon, he said.[53]

Many of the released prisoners have complained of enduring beatings, sleep deprivation, prolonged constraint in uncomfortable positions, prolonged hooding, sexual and cultural humiliation, forced injections, and other physical and psychological mistreatment during their detention in Camp Delta.

The U.S. government has denied all of the above charges, but on May 9, 2004, The Washington Post publicized classified documents that showed Pentagon approval of using sleep deprivation, exposure to hot and cold, bright lights, and loud music during interrogations at Guantánamo.[54] Sean Baker, a soldier posing as a prisoner during training exercises at the camp, was beaten so severely that he suffered a brain injury and seizures.[55] In June 2004 the New York Times reported that of the nearly 600 detainees not much more than two dozens were closely linked to Al-Qaeda and that only very limited information could have been gotten from questionings. The only top terrorist is reportedly Mohamed al-Kahtani from Saudi Arabia, who is believed to have planned to participate in the September 11, 2001 attacks.[56]

The International Committee of the Red Cross inspected the camp in June 2004. In a confidential report issued in July 2004 and leaked to the New York Times in November 2004, Red Cross inspectors accused the U.S. military of using "humiliating acts, solitary confinement, temperature extremes, use of forced positions" against prisoners. The inspectors concluded that "the construction of such a system, whose stated purpose is the production of intelligence, cannot be considered other than an intentional system of cruel, unusual and degrading treatment and a form of torture." The United States Government has reportedly rejected the Red Cross findings.[57] [58] [59]

The Washington Post in a May 8, 2004 article describes a set of interrogation techniques approved for use in interrogating alleged terrorists at Guantánamo Bay which are said by Kenneth Roth, executive director of Human Rights Watch, to be cruel and inhumane treatment illegal under the U.S. Constitution.[60]

On June 15 Brigadier General Janis Karpinski at the centre of the Abu Ghraib prisoner abuse in Iraq said she was told from the top to treat detainees like dogs "as it is done in Guantánamo [Camp Delta]". The former commander of Camp X-Ray, Geoffrey Miller, was the person brought in to deal with the inquiry into the alleged abuses at Abu Ghraib in Iraq during the Allied occupation. Ex-detainees of the Camp have made serious allegations, including alleging Geoffrey Miller's complicity in abuse at Camp X-Ray.

The book, Inside the Wire by Erik Saar and Viveca Novak also claims to reveal the abuse of prisoners. Saar, a former U.S. soldier, repeats allegations that female interrogators taunted prisoners sexually and in one instance wiped what seemed to be menstrual blood on the detainee. In reality it was just a red marker but the prisoner was unable to clean himself and hence unable to pray. Other instances of beatings by the IRF (initial reaction force) have been reported in this book and it supports the claim that the Qur'an was flushed down the toilet. An FBI email from December 2003, six months after Saar had left, said that the Defense Department interrogators at Guantánamo had impersonated FBI agents while using "torture techniques" on a detainee.[61]


U.S. government denial of allegations of mistreatment

Main article: Periodic Report of the United States of America to the United Nations Committee Against Torture
The United States government, through the State Department, makes periodic reports to the United Nations Committee Against Torture. In October 2005, the report focused on pretrial detention of suspects in the War on Terrorism, including those held in Guantánamo Bay. This particular Periodic Report is significant as the first official response of the U.S. government to allegations that prisoners are mistreated in Guantánamo Bay. The report denies the allegations, but does describe in detail several instances of misconduct that did not arise to the level of substantial abuse, as well as the training and punishments given to the perpetrators.


Released Prisoners

In late January 2004, U.S. officials released three children aged 13 to 15 and returned them to Afghanistan. Prison officials say these three were the only detainees below the age of 16. In March 2004, twenty-three adult prisoners were released to Afghanistan, five were released to the United Kingdom (the final four British detainees were released in January 2005), and three were sent to Pakistan.

On July 27, 2004 four French detainees Mourad Benchellali, Nizar Sassi, Imad Kanouni and Brahim Yadel were repatriated and remanded in custody by the French intelligence agency Direction de la Surveillance du Territoire.[62] The remaining three French detainees Mustaq Ali Patel, Ridouane Khalid and Khaled Ben Mustafa were released in March 2005.[63]

On August 4, 2004, the three ex-detainees who were returned to the UK (who were freed by the British authorities within 24 hours of their return home), filed a report in the U.S. claiming persistent severe abuse at the Camp, of themselves and others.[64] They claimed that false confessions were extracted from them under duress, in conditions which amounted to torture. They alleged that conditions deteriorated when Major General Geoffrey Miller took charge of the camp, including increased periods of solitary confinement for the detainees. They claimed that the abuse took place with the knowledge of the intelligence forces. Their claims are currently being investigated by the British Government.

There are five British residents remaining: Bisher Amin Khalil Al-Rawi, Jamil al Banna, Shaker Abdur-Raheem Aamer, Jamal Abdullah and Omar Deghayes. All these men have close family members who are British citizens and have themselves lived in the UK for many years.[65] In addition there are 'ghost prisoners' undeclared by the State, some of whom may be British residents.

Maulvi Abdul Ghaffar, captured in Afghanistan in December 2001, was one of the twenty-three prisoners released from Camp Delta in late January 2004. After his release, he joined the remnants of the Taliban and was killed in a gunfight on September 26, 2004.[66]

Abdullah Mehsud, also captured in Afghanistan in December 2001 after surrendering to Abdul Rashid Dostum, masterminded the kidnapping of two Chinese engineers in Pakistan's South Waziristan region as well as returning to his position as an Al-Qaeda field commander.[67] Mehsud has also claimed responsibility for the bombing at Islamabad's Marriott Hotel in October 2004. The blast injured seven people, including a U.S. diplomat, two Italians and the Pakistani prime minister's chief security officer.

Airat Vakhitov and Rustam Akhmyarov, two Russian nationals captured in Afghanistan in December 2001 (in a Taliban prison, in Vakhitov's case) and released from Guantánamo in 2004, were arrested by Russian authorities on August 27, 2005. The two former detainees were arrested in Moscow for allegedly preparing a series of attacks in Russia. According to authorities, Vakhitov was using a local human rights group as cover for his activities.[68] They were released on September 2, and no charges were ever pressed.[69]

Among the approximately two dozen Uyghur detainees in Guantanamo, the Washington Post reported on August 25, 2005 that fifteen had been determined not to have been "enemy combatants" after all.[70] Some of the Uyghurs had lawyers who volunteered to help them pursue a writ of habeas corpus, which would have been one step in getting them freed from American detention. Five of the Uyghurs were scheduled to have arguments for their writ of habeas corpus argued in U.S. District Court on Monday May 8, 2006. However, on Friday May 5, 2006, just prior to the scheduled court review, these five Uyghurs were abruptly transported to refugee camps in Albania, and the Department of Justice filed an "Emergency Motion to Dismiss as Moot" on the same day.[71][72] Barbara Olshansky, one of the Uyghur's lawyers, characterized the sudden transfer as an attempt to "...avoid having to answer in court for keeping innocent men in jail".[73][74] The remaining Uyghur detainees in Guantanamo appear to still be held there, as of July 3, 2006.

In August 2006, a German-born Turkish national was released from Guantánamo. Murat Kurnaz was handed over to German officials after being flown to the Ramstein air base in Germany, following lengthy negotiations between the German government and US officials.[75]


Suicides and attempted suicides
Main article: Guantanamo suicide attempts
Main Source: [76]

On June 10, 2006, three detainees were found dead. According to the Pentagon they "killed themselves in an apparent suicide pact".[77] But prison commander Rear Admiral Harry Harris claimed this was not an act of desperation.[78]

The three detainees hanged themselves with nooses made of sheets and clothes. According to military officials, the suicides were coordinated acts of protests, but human rights activists and defense attorneys said the deaths signaled the desperation of many of the detainees. Barbara Olshansky of the Center for Constitutional Rights, which represents about 300 Guantanamo prisoners said that detainees "have this incredible level of despair that they will never get justice".[79]

Amnesty International said the apparent suicides "are the tragic results of years of arbitrary and indefinite detention" and called the prison "an indictment" of the Bush administration's human rights record.[80]

Saudi Arabia's state-sponsored Saudi Human Rights group blamed the U.S. for the deaths. "There are no independent monitors at the detention camp so it is easy to pin the crime on the prisoners ... it's possible they were tortured," said Mufleh al-Qahtani, the group's deputy director, said in a statement to the local Al-Riyadh newspaper.[81]

Guantanamo officials have reported 41 unsuccessful suicide attempts by 25 detainees since the U.S. began taking prisoners to the base in January 2002. Defense lawyers contend the number of suicide attempts is higher.

A U.N. panel said May 19 that holding detainees indefinitely at Guantanamo violated the world's ban on torture and the United States should close the detention center.

Mark Denbeaux, a law professor at Seton Hall University in New Jersey who represents two Tunisians at Guantanamo, said he believes others there are candidates for suicide. Denbeaux said one of his clients, Mohammed Abdul Rahman, appeared to be depressed and hardly spoke during a June 1 visit. Rahman was on a hunger strike at the time and was force-fed soon after, Denbeaux said. "He told us he would rather die than stay in Guantanamo," the attorney said. "He doesn't believe he will ever get out of Guantanamo alive."[82]

As of August 2003, at least 29 inmates of Camp Delta had attempted suicide in protest. The U.S. officials would not say why they had not previously reported the incident.[83] After this event the Pentagon reclassified suicides as "manipulative self-injurious behaviors" because it is alleged by camp physicians that detainees do not genuinely wish to end their lives. The prisoners supposedly feel that they may be able to get better treatment or release with suicide attempts. Daryl Matthews, a professor of forensic psychiatry at the University of Hawaii who examined the prisoners, stated that given the cultural differences between interrogators and prisoners, such a classification was difficult if not impossible. Depression is common in Guantánamo, with 1/5 of all prisoners taking antidepressants such as prozac.[84]


Legal proceedings
Among the roughly 500 detainees, 10 have been tried and none has been proven guilty.



Supreme Court of the United States

On November 10, 2003, the United States Supreme Court announced that it would decide on appeals by Afghan war detainees who challenge their continued incarceration at the Camp as being unlawful.

On 10 January 2004, 175 members of both houses of Parliament in the UK had filed an amici curiæ brief to support the detainees' access to USA jurisdiction.

On June 28, 2004 the Supreme Court ruled in Hamdi v. Rumsfeld that "illegal combatants" such as those held in Guantánamo can challenge detentions but can also be held without charges or trial.

On June 29, 2006, the Supreme Court ruled in Hamdan v. Rumsfeld a case concerning bin Laden's chauffeur, that the military commissions established by executive order to try Gitmo detainees are unlawful and violate the U.S. Uniform Code of Military Justice, 1949 Geneva Conventions and various human rights standards relating to fair trials. [85]

The ruling also disagreed with the administration's view that the laws and customs of war did not apply to the U.S. armed conflict with Al Qaeda fighters during the 2001 U.S. invasion of Taliban-controlled Afghanistan, stating that Article 3 common to all the Geneva Conventions applied in such a situation, which--among other things--requires fair trials for prisoners. Common Article 3 applies in "wars not of an international character" (i.e. civil wars) in a signatory to the Geneva Conventions--in this case the civil war in signatory Afghanistan.

It is likely that the Bush administration may now be forced to try detainees held as part of the "war on terror" either by court martial (as U.S. troops and prisoners of war are) or by civilian federal court. However, Bush has indicated that he may seek an Act of Congress authorizing military commissions.


Military Commission hearings (Camp Delta)

Main article: Guantanamo military commission
On November 8, 2004, a federal court halted the proceeding of Salim Ahmed Hamdan, 34, of Yemen. Hamdan was to be the first Guantánamo detainee tried before a military commission.

Judge James Robertson of the U.S. District Court for the District of Columbia ruled that the U.S. military had failed to convene a competent tribunal to determine that Hamdan was not a prisoner of war under the Geneva Conventions -- specifically Article 5 of the third Geneva Convention, which reads:

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
However, a three judge panel overturned judge Robertson's ruling on Friday July 15, 2005.[86] The panel's ruling stated that the trial by military commission could, in and of itself, serve as the necessary "competent tribunal". On June 29, 2006, the Supreme Court reversed the ruling of the Court of Appeals and found that President Bush did not have authority to set up the war crimes tribunals and that the commissions were illegal under both military justice law and the Geneva Convention.[87][88] The Supreme Court reserved the question that Judge Robertson found decisive, namely it did not rule on whether detainees were entitled to an Article 5 determination or not.


Combatant Status Review Tribunals

Main article: Combatant Status Review Tribunal
There is a dispute, primarily between Bush administration supporters and opponents, over whether (and how) detainees may be incarcerated and tried.

David B. Rivkin Jr. and Lee A. Casey wrote:

Like its 2004 Hamdi v. Rumsfeld decision, the Supreme Court's Hamdan ruling affirms that the United States is engaged in a legally cognizable armed conflict to which the laws of war apply. It may hold captured al Qaeda and Taliban operatives throughout that conflict, without granting them a criminal trial, and is also entitled to try them in the military justice system — including by military commission. [89]
The Supreme Court in Hamdan v. Rumsfeld has not required that neither members of al Qaeda nor their allies, including members of the Taliban, must be granted POW status in the Hamdan decision. [2] However, the Supreme Court clearly stated that the Geneva Conventions, most notably the Third Geneva Convention, and also article 3 of the Fourth Geneva Conventions (requiring humane treatment) applies to all detainees in the War on Terror.
In July 2004, following the Hamdi v. Rumsfeld-ruling the Bush administration began using Combatant Status Review Tribunals to determine whether the detainees could be held as "enemy combatants" [90].

On 31 January, Washington federal judge Joyce Hens Green ruled that the Combatant Status Review Tribunals held to confirm the status of the prisoners in Guantánamo as "enemy combatants" were "unconstitutional", and that they were entitled to the rights granted by the Constitution of the United States of America.

The Combatant Status Reviews were completed in March 2005. 38 of the detainees were found not to be combatants.

On March 29, 2005, the dossier of Murat Kurnaz was accidentally declassified. Kurnaz was one of the 500-plus detainees the reviews had determined was an "enemy combatant". Critics found that his dossier contained over a hundred pages of reports of investigations, which had found no ties to terrorists or terrorism whatsoever. It contained one memo that said Kurnaz had a tie to a suicide bomber. Judge Green said this memo:

"fails to provide significant details to support its conclusory allegations, does not reveal the sources for its information and is contradicted by other evidence in the record."
Eugene R. Fidell, who the Washington Post called a Washington-based expert in military law, said:

"It suggests the procedure is a sham, If a case like that can get through, what it means is that the merest scintilla of evidence against someone would carry the day for the government, even if there's a mountain of evidence on the other side."[91]
Another detainee, Fawaz Mahdi, was determined by a CSRT to be an enemy combatant despite the fact that the CSRT itself (and also Fawaz' lawyer and he himself) observed that he suffers a form of mental illness, and that the only evidence for determining his status was his own statement.[92]

The principal arguments of why these tribunals are inadequate to warrant acceptance as competent tribunals under the U.S. Constitution are:[93][94]

a The CSRT conducted rudimentary proceedings
b The CSRT afforded detainees few basic protections
c Many detainees lacked counsel
d The CSRT also informed detainees only of general charges against them, while the details on which the CSRT premised enemy combatant status decisions were classified.
e Detainees had no right to present witnesses or to cross-examine government witnesses.
Most notably the flawed nature of the procedure can be seen in the following cases: Mustafa Ait Idir, Moazzam Begg,Murat Kurnaz, Feroz Abbasi, and Martin Mubanga.[91] [95] [96] A comment by legal experts states":

It appears ... that the procedures of the Combatant Status Review Tribunals do not qualify as status determination under the Third Geneva Convention. <......> The fact that no status determination had taken place according to the Third Geneva Convention was sufficient reason for a judge from the District Court of Columbia dealing with a habeas petition, to stay proceedings before a military commission. Judge Robertson in Hamdan v. Rumsfeld held that the Third Geneva Convention, which he considered selfexecuting, had not been complied with since a Combatant Status Review Tribunal could not be considered a ‘competent tribunal’ pursuant to article 5 of the Third Geneva Convention.[97]


Administrative Review Board
Main article: Administrative Review Board
In addition to the Combatant Status Review Tribunals the DoD initiated a similar, annual review. Like the CSRT the Board did not have a mandate to review whether detainees qualified for POW status under the Geneva Conventions. The Board's mandate was to consider the factors for and against the continued detention of captives, and make a recommendation either for their retention, or their release or their transfer to the custody of their country of origin. The first set of annual reviews considered the dossiers of 463 captives. The first board met between December 14, 2004 and December 23, 2005. The Board recommended the release of 14 detainees, and repatriation to the custody of their country of origin of 120 detainees.


Other court rulings

On February 23, 2006 U.S. District Judge Jed S. Rakoff in New York ordered the Defense Department to release uncensored transcripts of detainee hearings which contained identifying information for detainees in custody as well as the names of those who have been held and later released. The U.S. military has never officially released even the names of any detainees except the ten who have been charged. The U.S. Defense Department immediately said it would obey the judge's order.[98] The names of only 317 of the about 500 alleged enemy combatants being held in Guantánamo Bay were released by the United States Department of Defense on March 3, 2006 after a court order to reveal them. Pentagon spokesmen Bryan Whitman justified withholding the names out of a concern for the detainees' privacy, although justice Jed Rakoff had already dismissed this argument.[99] [100]

On January 31, 2005, U.S. District Judge Joyce Hens Green in the District of Columbia ruled that:

(1) detainees had the fundamental Fifth Amendment right not to be deprived of liberty without due process of law; (2) complaints stated a claim for violation of due process based on Combatant Status Review Tribunal's ("CSRT") extensive reliance on classified information in its resolution of “enemy combatant” status of detainees, the detainees' inability to review that information, and the prohibition of assistance by counsel jointly deprived detainees of sufficient notice of the factual bases for their detention and denied them a fair opportunity to challenge their incarceration; (3) due process required that CSRT sufficiently consider whether the evidence upon which the tribunal relied in making its “enemy combatant” determinations had been obtained through torture; (4) complaints stated a claim for violation of due process based on the government's employment of an overly broad definition of “enemy combatant” subject to indefinite detention; and (5) Geneva Conventions applied to the Taliban detainees, but not to members of al Qaeda terrorist organization.[101]


Legal status

The particular legal status of Guantánamo Bay was a factor in the choice of Guantánamo as a detention center. Because the sovereignty of Guantánamo Bay ultimately resides with Cuba, the U.S. government argued unsuccessfully that U.S. courts had no jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantánamo Bay. (see Cuban American Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412 (11th Cir. 1995)). In 2004, the Supreme Court rejected this argument in the case Rasul v. Bush brought by the Center for Constitutional Rights, with the majority decision and ruled that prisoners in Guantánamo have access to American courts to challenge the legality of their detention, citing the fact that the U.S. has exclusive control over Guantánamo Bay.

On November 8, 2004 U.S. District Court Judge James Robertson ruled in Hamdi v. Rumsfeld that the Bush Administration could not try such prisoners as enemy combatants in a military tribunal and could not deny them access to the evidence used against them.[102] However, on 15 July 2005, the D.C. Circuit Court of Appeals in overturning Robertson ruled that al-Qaeda members could not be classified as prisoners of war and upheld military tribunals in U.S. Naval Station Guantanamo Bay for al-Qaeda members. This ruling does not necessarily authorize all military tribunals as the case only dealt with the POW status of al-Qaeda members.

Prisoners held at Camp Delta and Camp Echo have been labelled "illegal" or "unlawful enemy combatants", but a number of observers such as the Center for Constitutional Rights and Human Rights Watch maintain that the United States has not held the Article 5 tribunals required by the Geneva Conventions.[103] The International Committee of the Red Cross has stated that, "Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, [or] a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can fall outside the law." Thus, if the detainees are not classified as prisoners of war, this would still grant them the rights of the Fourth Geneva Convention (GCIV), as opposed to the more common Third Geneva Convention (GCIII) which deals exclusively with prisoners of war. A U.S. court has rejected this argument, as it applies to detainees from al Qaeda.[104]

Many supporters of the Bush administration have argued for the summary execution of all unlawful combatants, using Ex parte Quirin as the precedent, a case during World War II which upheld the use of military tribunals for eight German soldiers caught on U.S. soil. The Germans were deemed to be saboteurs and unlawful combatants, and thus not entitled to POW protections, and six were eventually executed for war crimes on request of the President of the United States of America, Franklin D. Roosevelt. The validity of this case, as basis for denying prisoners in the War on Terrorism protection by the Geneva Conventions, has been disputed.[105][106][107] A report by the American Bar Association commenting on this case, states:

The Quirin case, however, does not stand for the proposition that detainees may be held incommunicado and denied access to counsel; the defendants in Quirin were able to seek review and they were represented by counsel. In Quirin, “The question for decision is whether the detention of petitioners for trial by Military Commission ... is in conformity with the laws and Constitution of the United States. “ Quirin, 317 U.S. at 18. Since the Supreme Court has decided that even enemy aliens not lawfully within the United States are entitled to review under the circumstances of Quirin,11 that right could hardly be denied to U. S. citizens and other persons lawfully present in the United States, especially when held without any charges at all.[108]
Summary of the USA Government's position regarding the Legal Status of the Inmates detained in Guantanamo Bay

In international law, the Geneva Conventions do not apply to "unlawful combatants." Effectively, unlawful combatants are combatants that act at the behest of a leader(s) who is not a duly recognized or authorized government. It's somewhat more complicated than this, but this is essentially correct. Accordingly, the U.S. soldiers are not unlawful combatants in Iraq because they act at the behest of the Federal Government of the United States of America - a duly recognised government. However, mercenaries are unlawful combatants because they do not act at the behest of a recognised government. The "policy" motivation behind denying international legal protection to unlawful combatants is simple: unlawful combatants pose such a great threat to statehood and the proper political processes of a state that they effectively threaten the stability and integrity of international law itself. To discourage unlawful combatants, international law simply refuses to afford them individual international legal protection.

The United Nations refused to duly recognise the Taliban as the lawful and authorised government of Afghanistan prior to September 11 2001. Accordingly, when the U.S. invaded Afghanistan following the September 11 and captured "Taliban fighters", the U.S. classed them as unlawful combatants, since the UN never recognized the Taliban as the government of Afghanistan. However, if the U.S. imprisoned the captured fighters in (for example) New York, then these captured fighters would receive a variety of legal protections afforded to all persons held within the territorial jurisdiction of the courts of the State of New York. To avoid this, the U.S. government detained them at Guantanamo Bay for two reasons. First, the U.S. believed at that time that, if challenged legally, they could (and did) argue that the sovereignty of Guantánamo Bay ultimately resides with Cuba and therefore, the U.S. courts do not have jurisdiction to hear matters relating to prisoners held in Cuba. This argument, as mentioned above, was met with disapproval by the U.S. courts. Second, the only real judiciary available to the U.S. in Cuba is internal military tribunals. While these tribunals are mainly used to prosecute serious misconduct of U.S. marines, the U.S. government intended to use them to try the "unlawful Taliban combatants." The rules of the military court are very different to domestic U.S. courts. Laws relating to evidence are less favorable to the accused and there are few regulations relating to the postponement of proceedings.


NGO reports

On November 30, 2004, The New York Times published excerpts from an internal memo leaked from the U.S. administration,[58] referring to a report from the International Committee of the Red Cross (ICRC).

The ICRC reports of several activities which, it said, were "tantamount to torture": exposure to loud noise or music, prolonged extreme temperatures, or beatings. It also reported that a behavior science team (BSCT), also called 'Biscuit', and military physicians communicated confidential medical information to the interrogation teams (weaknesses, phobias, etc.), resulting in the prisoners losing confidence in their medical care.

Access of the ICRC to the base was conditional, as is normal for ICRC humanitarian operations, on the confidentiality of their report; sources have reported heated debates had taken place at the ICRC headquarters, as some of those involved wanted to make the report public, or confront the U.S. administration. The newspaper said the administration and the Pentagon had seen the ICRC report in July 2004 but rejected its findings.[109][57] The story was originally reported in several newspapers, including The Guardian,[110] and the ICRC reacted to the article when the report was leaked in May.[59]

In a foreword[111] to Amnesty International's International Report 2005,[112] the Secretary General, Irene Khan, made a passing reference to the Guantánamo Bay prison as "the gulag of our times," breaking an internal AI policy on not comparing different human rights abuses. The report reflected ongoing claims of prisoner abuse at Guantánamo and other military prisons.[113] [114] [115]


Government and military inquiries

In December 2002, David Brant, director of the Naval Criminal Investigative Service (NCIS), alerted Navy General Counsel Alberto J. Mora to reports of detainee abuse performed by the Joint Task Force 170 (JTF-170) and authorized at high levels in Washington. General Counsel Mora and Navy Judge Advocate General Michael Lohr believed the detainee treatment to be unlawful, and campaigned among other top lawyers and officials in the Defense Department to investigate and to provide clear standards prohibiting coercive interrogation tactics.[116] In response, on January 15, 2003, Donald Rumsfeld suspended the approved interrogation tactics at Guantánamo until a new set of guidelines could be produced by a working group headed by General Counsel of the Air Force Mary Walker. The working group based its new guidelines on a legal memo from the Department of Justice Office of Legal Counsel written by John Yoo and signed by Jay S. Bybee, which would later become widely known as the "Torture Memo". General Counsel Mora led a faction of the Working Group in arguing against these standards, and argued the issues with Yoo in person. The working group's final report was signed and delivered to Guantánamo without the knowledge of Mora and the others who had opposed its content. Nonetheless, Mora has maintained that detainee treatment has been consistent with the law since the January 15, 2003 suspension of previously approved interrogation tactics.[117]

After reports of detainee abuse became public, U.S. Navy Secretary Gordon England ordered a review of detainee incarceration practices at Guantánamo, conducted by Navy inspector general, Vice Admiral Albert Church, which concluded the facility was "being operated at very high standards."

On May 1, 2005, The New York Times reported on an ongoing high-level military investigation into accusations of detainee abuse at Guantánamo, conducted by Lt. Gen. Randall M. Schmidt of the Air Force, and dealing with: "accounts by agents for the Federal Bureau of Investigation who complained after witnessing detainees subjected to several forms of harsh treatment (...) The F.B.I. agents wrote in memorandums that were never meant to be disclosed publicly that they had seen female interrogators forcibly squeeze male prisoners' genitals, and that they had witnessed other detainees stripped and shackled low to the floor for many hours."[118][119]

On June 3, 2005, a U.S. military report supported allegations that U.S. soldiers had abused the Qur'an. The report found that a soldier deliberately kicked a Qur'an; an interrogator stepped on a Qur'an; a guard's urine came through an air vent, splashing a detainee and his Qur'an; water balloons thrown by prison guards caused a number of Qur'ans to get wet; and a two-word obscenity was written in English on the inside cover of a Qur'an. It concluded that many other allegations of desecration were unfounded (see Qur'an desecration controversy of 2005).

In June 2005 the U.S. House of Representatives Armed Services Committee visited the camp and described it as a "resort" and complimented the quality of the food. However Democratic members of the committee complained that Republicans had blocked the testimony of attorneys representing the prisoners.[120] Democratic Senators have visited Guantánamo and they reported that they could not find evidence of abuse or mistreatment.

On July 12, 2005 members of a military panel told the committee that they proposed disciplining prison commander Army Major General Geoffrey Miller over the interrogation of Mohamed al-Kahtani who was forced to wear a bra, dance with another man and threatened with dogs. The recommendation was overruled by General Bantz J. Craddock, commander of U.S. Southern Command, who referred the matter to the Army's inspector general.[121]