No Comment, Six Questions — June 4, 2014, 8:00 am

Uncovering the Cover Ups: Death Camp in Delta

Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp

Mark Denbeaux © Sean Sime

Mark Denbeaux © Sean Sime

In the June issue, Harper’s Magazine has published the eyewitness account of a military policeman describing the events of the night of June 9, 2006, at the Guantánamo Bay detention camp, when three prisoners died under mysterious circumstances that the U.S. government has sought to pass off as a series of synchronized suicides. The account is one of a group of previously unnoted documents, uncovered by researchers at Seton Hall Law School, that collectively demonstrate that the government’s own investigation did not support its claims about the deaths. They are the subject of a new report, Uncovering the Cover Ups: Death Camp in Delta. I put six questions to Professor Mark Denbeaux about the report:

1. Among other things, Seton Hall’s new report focuses on a bombshell document that Harper’s has reproduced in the current issue. How was this document discovered?

Finding needles in haystacks is what my Seton Hall students do best. Working with senior fellows at the Center for Policy and Research, they discovered this document in the summer of 2010. In a sense, it is not “new,” because it has been lying in a mountain of documents released by FOIA. But there are many more documents released through FOIA than anyone can review. Except for us. We read them.

Our 2009 report, Death in Camp Delta, proved that the conclusions of the Naval Criminal Investigative Service were wrong. We knew the claim that the men were found dead hanging in their cells was untrue. The question was whether the NCIS had been incompetent or had covered up the cause and manner of the deaths. We began to investigate how it could have been so wrong, while giving the government the benefit of all doubt.

Characterizing the NCIS’s investigation and its conclusions as merely incompetent doesn’t wash. It is now clear that the service destroyed crucial contradictory statements and concealed the existence of other contradictory evidence. It reconstructed the “crime” scene and fabricated still other evidence. But it turns out that at least some of the evidence the NCIS tried to bury can be found elsewhere — if you have the time and patience to find it.

Uncovering the Cover Ups exposes the NCIS’s unsavory actions. More disheartening, however, it also exposes the failures of the Department of Justice, which has twice covered up for the investigation by concealing the truth in response to Congressional inquiries about Death in Camp Delta.

The “bombshell” document is really just one piece of a convincing mosaic of evidence in the government’s own files. The medical escort’s statement makes it impossible to believe that the NCIS errors resulted from simple incompetence. Three Seton Hall students looked into a previously unexamined file that was explicitly not part of NCIS’s investigation, but rather an internal military inquiry into the guards’ conduct that night — the Staff Judge Advocate’s (SJA) report. That inquiry was closed in August of 2006. Buried inside was the medical escort’s statement.

One student, guided by a senior fellow, found this three-page document amid the jumble of the SJA file. She read it, puzzled over it, and then, along with two other students, began to understand that it related to one of the three deaths. At first, all three of the students were skeptical — the facts that the document described so completely contradicted the NCIS’s conclusions. Another investigator from the Center for Policy and Research independently reviewed the SJA file and came to the same conclusion.

An upset student came to me, saying, “I think that we have found something horrible. At least one of the detainees was alive hours later than reported. He was left to die. First in the detainee clinic, where he lay unattended on a gurney with ropes tied around his neck. He was later found in an ambulance with faint vital signs because the ropes were still around his neck. When they cut the ropes off, his vital signs improved. But when he arrived at the hospital, he lay there while Camp Delta kept calling, asking if he were dead yet. And finally he died. This is more horrible than I could possibly have imagined.”

It got worse. The NCIS investigators not only removed a damning document, they took steps to hide its existence. It belonged in the NCIS report. Three other students found that the investigators had taken the escort’s sworn statement; it had originally been stamped with NCIS notations and placed with the proper exhibit numbers into the file. But it was no longer there! In its place were three random, disconnected pages — photocopies of other pages already in the file. NCIS had attempted to destroy this chilling statement. No one reading the file would ever have known that it once included a three-page statement from a sworn eyewitness that sharply contradicted the NCIS’s conclusions.

Law students understand spoliation of evidence — and that there’s always a motive behind it.

2. What else did you find among the public documents that raised red flags?

More documents were found in other nooks and crannies of a variety of different investigations and files.

The medical history of one detainee was missing from the NCIS file, but we found it in his medical records. His history contained a description of the cause and manner of his death by the senior medical officer who declared him dead at the clinic. The officer’s report did not mention hanging. It stated that the cause of death was asphyxiation caused by clogged airways. That would be consistent with having rags stuffed down their throats, but not hanging.

The computer logs showing who entered and exited the cells show that an unknown number of people came and went in the hours after the men were declared dead and before the NCIS investigation began. And they show that during those trips objects were brought in, and others removed, several times.

A guard on the previous shift had reported that the contents of the cells, which he had searched just before the detainees supposedly died there, were inadequate for the purpose for which the prisoners supposedly used them: to hang themselves and conceal what they were doing.

The students also noted the absence of evidence. Where were the suicide notes? Where were the biographies of those supposedly suicidal men? And, most tellingly, where were the initial statements of the guards from that night? The only recorded guard statements were given four days after the deaths, long after the guards made their first statements.

3. Following the publication of Death in Camp Delta and “The Guantánamo ‘Suicides’ ” in Harper’s, Congresswoman Anna Eshoo (D., Calif.) wrote to Attorney General Eric Holder and asked for a probe. How did the department respond, and what does this tell you about its posture with respect to the deaths at Camp Delta?

Congresswoman Eshoo, a member of the House Permanent Select Committee on Intelligence, formally wrote to Holder to convey her “grave concern” about the NCIS investigation and request that the Justice Department conduct its own investigation using Harper’s and Seton Hall’s findings. Her letter expressed doubt that the three detainees’ deaths were suicides and stated that the Harper’s article “raises questions regarding the thoroughness of the investigation by the [NCIS] in reviewing the incident” and “cites accounts of witnesses at Guantánamo, as well as statements from other documents that conflict with the conclusions of the base commander.” Eshoo formally requested that the Justice Department “review the report of the NCIS to determine its veracity,” and thereafter “take the appropriate actions.”

Four months later, Assistant Attorney General Ronald Weich responded to her in a one-page letter. I understand that you spoke with Weich, and that he denies knowing anything about the background of the letter he signed, which he insists was prepared by others in the department. He just signed it. Really.

But it’s easy to see why someone would want to distance himself from the letter. The few facts the Justice Department included in its response are misleading, and they demonstrate a lack of familiarity with the NCIS investigation. For example, Weich’s letter repeated the false claim that the NCIS conducted “a thorough, year-long investigation” into the three detainees’ deaths. Worse, it stated that “NCIS agents who investigated the case also found no evidence indicating that the three detainees died by means other than suicide.” Had the letter presented facts rather than deception, it would have acknowledged that the NCIS had submitted its conclusions within a month and that the agents reported no such evidence. They certainly found it.

Worse yet was the DOJ’s refusal to probe the accuracy of the NCIS report, despite the evidence laid out by both Seton Hall and Harper’s. For example, there was no indication of any effort to talk to the guards who had come forward by name to tell Harper’s what they observed that night. While DOJ claimed that in 2009 a joint DOJ–FBI review team had traveled to Guantánamo Bay, “interviewed a number of persons, and examined large amounts of evidentiary material,” there would have been no one left to interview at the base, three years on, who would have had first-hand knowledge of the deaths.

Nor was Eshoo’s the first request Congress had received for a Justice Department investigation. Several months earlier, Congressman William Delahunt of Massachusetts had inquired with the department about the “suicides.” Seton Hall students and the lead investigator at the Center for Policy and Research recently discovered a DOJ e-mail string captioned, “Heads-up from Rep Delahunt re: GTMO suicide allegations.” Delahunt alerted the DOJ that the story was about to be aired in the press and asked whether the matter was under investigation. He also stated that if the allegations were credible, he might hold hearings on the deaths.

The chain contains nine other e-mails, sent across a period of twenty-nine hours and involving fourteen highly placed DOJ officials, including Assistant Attorney General Ron Weich and Kathryn Ruemmler, who recently left her position as White House Counsel to return to private practice. We don’t know what all of the e-mails said.

4. What conclusions can be drawn from your new report regarding the current debate over the declassification of the Senate Select Committee on Intelligence’s report on torture?

DOJ is part of the problem, not part of the solution.

Uncovering the Cover Ups5. What does the information you have collected to date about the events of June 9, 2006, and the subsequent investigations and cover-up, tell you about who was making key decisions within the U.S. government?

I’ll answer that question with another: What would be so important that the NCIS and the DOJ — over the course of two different presidential administrations — would repeatedly attempt to conceal the manner and cause of the death of three detainees at Guantánamo?

6. This must have been an exciting investigation for your students. How did they react to the discoveries of the government cover-ups?

There have been twenty students and senior fellows participating, and they have each drawn their own personal lessons from their research work. But it has been painful for them all.

A few experienced moments of fear; all are much more skeptical; and some have expressed despair at how the government acted. But the good news is that these young lawyers are resilient, confident that they uncovered the truth, and certain that this whole sordid experience will eventually be exposed. They continue to hope that when the truth is revealed, the American people will react appropriately. After all, we have a long history of doing so.

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