Military lawyers to sue Pentagon over cancer-linked Guantanamo housing, work areas

WASHINGTON – A group of military lawyers who work at the Guantanamo Bay prison are expected to file a lawsuit Tuesday against the Department of Defense, saying they have been forced to live and work in facilities with dangerous levels of known carcinogens for years.

They charge that the U.S. Navy failed to properly investigate health hazards following reports of unusually high cancer cases among otherwise young and healthy personnel at Camp Justice, the war court complex where legal teams work on the cases of war-on-terror detainees.

The complaint cites the Navy’s “unreasonable delay” in assessing known environmental hazards such as mercury and formaldehyde, and its “arbitrary and capricious determination that . personnel must live and work in contaminated areas of Camp Justice before a proper investigation and appropriate remediation are completed.”

The presence of cancer-causing agents has long been a cause of anxiety among the military defense teams who represent the terror detainees at the remote prison.

“This really is having a human level impact on people who have signed up to do this work,” said Daniel Small, a partner at Cohen Milstein Sellers & Toll, which is working on the Guantanamo lawyers’ case without charge.

“These are soldiers, sailors, Marines who have signed up to do some of the hardest legal work that exists in my opinion in the Department of Defense, and these people deserve better,” he said. “We should be making sure that we are protecting them, taking care of these soldiers who have signed up to a fairly thankless task.”

The filing comes nearly two years after a former Guantanamo attorney asked the Pentagon in July 2015 to investigate whether the war court compound was linked to seven cases of cancer among service members and civilians who’d worked there. One of those seven people, Lt. Cmdr. William Kuebler, had cancer of the appendix and died days after the complaint was filed.

The Miami Herald at that time found a dozen people who’d suffered a wide range of cancers, including brain, colon, stomach and appendix cancer.

Higher-ranking officials, judges and civilian attorneys usually stay in hotel-style guest accommodations known as “hard housing” when they go to the base. But the military defense team assigned to each accused terrorist, which includes lawyers, paralegals, security officers, linguists and others, stay and work in a trailer park set up on an abandoned airstrip.

The so-called Cuzco trailers opened in 2008 and are part of the $12 million facility that includes buildings that were closed down before the Pentagon set up the prison in 2002. In the 1990s, the area was used as a camp for Cuban migrants who’d been picked up at sea during the so-called rafter crisis.

One of the plaintiffs, Michael Schwartz, a former military lawyer who represented Guantanamo detainees for more than five years, said in an interview that he was shocked when he first arrived at the legal center in 2011.

“I was just amazed when I walked into my office for the first time and saw (these) work stations for what was eventually one of the most significant criminal trials in the history of law in the U.S.,” he said. While he had expected spartan conditions, he said he was not expecting to be worried for his health.

In 2012, he and his colleagues first brought up their concerns “about rat feces and mold and just general filth in the office because nobody seemed to be paying attention,” Schwartz said. “But we weren’t successful in getting much of a response.”

As they grew increasingly worried and some staff members sought hospital care, the military sent a base industrial hygienist “with no scientific background or training,” he said.

In addition to lead, mold and asbestos, a 2015 assessment found that “air samples tested positive for mercury and formaldehyde, and the soil samples tested positive for benzoapyrene – all carcinogenic substances,” according to the filing.

Although these carcinogens exceeded the screening levels, the Navy and Marine Corps Public Health Center said it didn’t have enough data and that the investigation was too limited to be able to assess the health risks.

The Navy also neglected to test 84 out of 100 units in the Cuzco trailers for formaldehyde, according to the filing.

“It’s in the air that’s breathed all day long by people working and living in those spaces, even though it was determined it was above EPA screening levels,” Small said.

The military said that it would assess the potential impact of this range of cancer-causing agent, and check the health files of 700 people who worked at the site.

A promised final report of the health testing never materialized.

“The first and second deadlines came and went, and nothing since,” Small said. “This is a long time for these kinds of serious conditions to go unaddressed, and for some reason the Navy does not seem to have any urgency about this.”

Many lawyers have struggled to limit their travel to the base, live in alternative housing when they can, and reduce the number of team members they bring with them to avoid exposing them to health hazards.

“They have made the tough choice to defend their clients even when it creates risks to their health,” Small said. “But you have a professional obligation to show up and do your job in the Camp Justice offices, and appear in a Camp Justice courtroom.”

In April 2016, Brig. Gen. John Baker, the chief defense counsel for military commissions, forbade his staff to sleep in the Cuzcos after seeing the health risk assessment of cancer-causing agents conducted by the Navy-Marine Corps. While the report was inconclusive, a copy obtained by the Miami Herald shows that it looked into a variety of contaminants around the complex, including asbestos and mercury in offices used by attorneys, arsenic in soil samples, and toxic polychlorinated biphenyls, or PCBs, found in the hangar where reporters write.

“At this time, the potential cancer risk and non-cancer health effects associated with Camp Justice and any final conclusions (and risk management actions) cannot be determined,” said the Navy-Marine Corps risk assessment, which was dated February 2016.

The following month, Baker notified troops that he had been assured that the trailer park with formaldehyde was habitable, and that he would sleep in the previously forbidden trailers.

“People have been living in these spaces for many years, and known about the contamination for almost two,” Small said, adding that the Navy took no further steps after tests last April still found elevated levels of carcinogens.

The attorneys are asking the Department of Defense to complete the testing and do a proper risk assessment that applies the required health standards. In the meantime, they are asking to live in alternative housing, which they say is abundantly available.

“Our understanding so far is that they have not prioritized this and would rather make hard housing available to other people who come to the base on a temporary basis, contractors and others like that, rather than make a priority the health of the people they’re requiring to be at Camp Justice to defend the detainees,” Small said.

Of the roughly 780 people who have been sent to the prison since 2002, only 41 remain, but President Donald Trump has indicated that he intends to keep it open and fill it with more prisoners.