WASHINGTON (CN) – Defense attorneys for one of the accused 9/11 plotters claimed in federal court Tuesday that the Navy is forcing them to live and work in buildings at the Guantanamo Bay Naval Base known to contain dangerous toxins.
Lawyers for Walid bin Attash allege the Navy arbitrarily decided — based on “a deeply flawed” investigation — that the buildings are safe, forcing them to choose between defending their clients or protecting their health.
“Although this investigation found and documented the presence of hazardous conditions and cancer-causing chemicals, ranging from formaldehyde to heavy metals and mold, the investigation is inadequate to determine how great a risk they pose to human health, much less to determine appropriate remedial measures,” the 39-page complaint states.
Plaintiffs Maj. Matthew Seeger, Michael Schwartz, Cheryl Bormann and Edwin Perry — who the Department of Defense hired to defend bin Attash — must travel to Guantanamo for weeks at a time for pre-trial hearings and other matters related to defending their client.
According to their attorney Daniel Small with Cohen Milstein Sellers & Toll, his clients’ two-year effort to resolve the issue with the Military Commission has failed, prompting them to take legal action.
“We made efforts as well to try and resolve this informally with the Navy and were not able to make any progress,” Small said in a phone interview.
His firm, along with several attorneys from Venable, took up the case on a pro bono basis, he said.
Camp Justice, which includes living quarters, office space and the million-dollar war court complex where defense attorneys spend most of their time at Guantanamo, sits atop an old air strip on the Naval Base.
Though built to be temporary, the Navy has used Camp Justice continuously for 10 years.
According to the April 11 lawsuit, the abandoned McCalla airfield was last used in the 1970’s.
“Upon information and belief, Defendants conducted no meaningful environmental review or cleanup when they converted the airfield into the housing and workspaces at Camp Justice,” the complaint states.
In July 2015, the Navy received a hotline complaint from a former Guantanamo attorney who asked the DOD to investigate a link between environmental toxins at Camp Justice and cancer cases among seven former civilian and military personnel.
As the lawsuit notes — one of them, former Camp Justice attorney Lt. Cmdr. Bill Kuebler — died from cancer in July 2015.
Based on reporting from the Miami Herald, the complaint counts nine total cancer cases among former personnel working at Camp Justice since 2004 and three deaths, which occurred in the 13 months preceding the inspector general complaint triggered by the hotline tip.
The Navy has since conducted several assessments at Camp Justice, including air samples that showed the presence of carcinogens mercury and formaldehyde, and soil samples that turned up benzo(a)pyrene.
Despite these efforts, the defense attorneys say the Navy has yet to definitively conclude that their living and work spaces are safe, and refuses to house them elsewhere in the meantime.
Small called that “remarkable” given that other housing on the base outside of Camp Justice is available.
“The Navy seems to be unwilling to even move military commission personnel on an interim basis to this other housing until the Navy completes a proper investigation and takes any appropriate remediation,” he said.
“I’m not sure why the Navy is unwilling to do that, but that housing is available,” he added.
The attorneys name the DOD, Navy Secretary Sean Stackley and director of the Office of Military Commissions and Convening Authority Harvey Rishikof as defendants.
The Pentagon did not immediately respond to an emailed request for comment about the lawsuit.
Seeger, Schwartz, Bormann and Perry have asked the court to order Stackley to conduct a thorough investigation and provide them with alternative housing and work space until Camp Justice is deemed safe.
The Guantanamo defenders had litigated the issue during pre-trial hearings last July.
They had filed a motion to get a toxicology expert to determine if Camp Justice was safe to work in. Schwartz had called the motion “weird,” noting that he could find no other example of an abandoned air field tainted by toxic chemicals and fuel spills that had been transformed into a war court.
Army Judge Col. James Pohl later denied their request for extra funding for an expert.
For now, the problem of environmental toxins, including carcinogens, remains, Small said.
“The Navy promised that it would do an investigation, do a risk assessment and issue a final report by last fall and didn’t do so,” Small said.
“Then it extended its own deadline until the end of last year and did not issue a final report by then,” he added. “And it has still issued no final report, it has given no deadline by which it will do so.”