WASHINGTON — To date, the U.S. government hasn't given any former detainee financial compensation or apologized for wrongfully imprisoning him, shipping him around the world and holding him without legal recourse.
The 38 former Guantanamo detainees who've been found to be no longer enemy combatants by tribunal hearings — the closest the military has come to admitting that it detained some innocent men — were flown out of Cuba with nothing but the clothes on their backs and assorted items such as copies of the Quran and shampoo bottles that the U.S. military issued to them.
"It's particularly deplorable that none of the 38 NLECs have been compensated, since the U.S. has officially recognized that they weren't 'enemy combatants,' even under the broad U.S. definition," said Joanne Mariner, the terrorism and counterterrorism program director at Human Rights Watch.
Ian Seiderman, a senior legal adviser for Amnesty International, agreed.
"The fact that (compensation) hasn't happened at all, even in a small number of cases, shows that this administration is more concerned with avoiding scrutiny and accountability than it is the rule of law," said Seiderman, who previously served as a legal adviser to the Geneva-based International Commission of Jurists and the assistant to the special rapporteur on torture for the United Nations.
Seiderman cited two United Nations' measures — including the 1966 International Covenant on Civil and Political Rights, for which the United States is a signatory — that he said call for compensation in cases such as those of many former Guantanamo detainees.
The former general counsel of the defense department, William J. Haynes II, and the general counsel of the State Department, John Bellinger III, declined interview requests, as did several other senior American defense and administration officials.
Human rights advocates said they didn't expect action from the U.S. government anytime soon. The Bush administration has cut off most domestic legal channels, often claiming that cases can't proceed either because the evidence involved includes state secrets or because those who might be charged are immune from prosecution.
The administration also has refused to take part in foreign court proceedings in which international laws against cruel or unusual treatment of detainees could be enforced.
When Congress passed the Military Commissions Act of 2006, it included a section forbidding U.S. courts from hearing almost any detainee cases against the government or its representatives. The act blocks legal actions related to "any aspect of the detention, transfer, treatment, trial or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."
In January, the U.S. Court of Appeals for the District of Columbia Circuit dismissed a case filed by four former Guantanamo detainees who alleged that their mistreatment amounted to physical torture and religious harassment. It included allegations that a guard threw a Quran into a bucket used as a toilet.
The court agreed with the government's argument that even if the ex-detainees, all British citizens, had been tortured, those who tortured them would be protected under the Federal Employees Liability Reform and Tort Compensation Act of 1988, which provides immunity in some cases to federal workers for actions done within the scope of their employment.
"Even if the detainees were to establish that the defendants authorized, implemented, supervised and condoned torture ... the defendants' conduct would nonetheless fall within the scope of their employment because the defendants were employed to detain and interrogate suspected enemy combatants," the court wrote in its decision.
The detainees also raised the issue of their religious rights being violated under a U.S. law known as the Religious Freedom Restoration Act, which says that "Government shall not substantially burden a person's exercise of religion" unless such an action furthers an important government interest and is the least restrictive way of doing so.
The appeals court decided that because the former detainees were foreigners who were detained outside sovereign U.S. territory at the time, "they did not fall with(in) the definition of 'person.' "
In a separate opinion, Judge Janice Rogers Brown agreed with the court's decision but took exception to how it got there. She wrote: "It leaves us with the unfortunate and quite dubious distinction of being the only court to declare those held at Guantanamo are not 'person(s).' "
McClatchy Newspapers 2008