One Life Inside Gitmo

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In a U.S. district court in Washington last week, lawyers for Mohammad Bawazir, a Yemeni held at Guantánamo since May 2002, challenged treatment of their client that they argued constituted torture. Bawazir, who had lost 33 lbs. in a hunger strike, claims that in January Guantánamo authorities repeatedly force-fed him by brutally inserting into his nose a thick feeding tube and then roughly pulled it out, causing excruciating pain. The Justice Department argued that Bawazir cannot seek protection under the anti-abuse provisions of the McCain amendment because it contains "no private right of action" that would let defendants sue the government. In other words, Justice says, the government can bust an interrogator for abusing a detainee, but the detainee has no recourse.

The McCain provision was an amendment to the Detainee Treatment Act, written by Senators Lindsey Graham and Carl Levin, which, according to Justice's interpretation, gives Guantánamo inmates access to U.S. courts only for purposes of appealing their convictions by military commissions or their designations as enemy combatants, which allows the government to detain them indefinitely without trial. Says Tom Malinowski, Washington advocacy director for Human Rights Watch: "Only the Supreme Court or the Congress can resolve the contradiction between the McCain amendment, which prohibits cruel treatment, and the Detainee Treatment Act, which prevents prisoners from complaining about that treatment in court."

In al-Odah--which many legal experts believe will end up before the Supreme Court--the government has invoked the Detainee Treatment Act in an attempt to preclude extensive court review of the prisoners' detentions. But the detainees' lawyers argue that the act clashes with a 2004 Supreme Court ruling that opened the federal courts to any prisoner held by the U.S. anywhere in the world. "The issue in this case is critically important because if the government has its way, Guantánamo will be returned to a legal black hole," says Eric Freedman, a professor of constitutional law at Hofstra University and a consultant to several detainees. "It would be an outrage if evidence being used to hold prisoners was extracted by unconscionable methods and that fact did not come to light in a court of law."

Questions surrounding the Detainee Treatment Act will be raised in arguments before the Supreme Court as well on March 28, when lawyers for Salim Ahmed Hamdan, alleged to be bin Laden's driver, challenge government attempts to put him on trial before a military commission, claiming his detention is illegal. Guantánamo detainees did win one victory last week when the Pentagon was compelled by a federal judge to release the names and nationalities of all the prisoners who have participated in hearings considering their enemy-combatant status--about 300 of the 500.