Adm. Patrick M. Walsh, the vice chief of Naval Operations, presented his review of conditions of confinement at Guantánamo Bay (PDF) at a briefing at detention facilities at Guantánamo Naval Base yesterday afternoon. The review team interviewed the military leaders in charge of the detention facility as well as staff, interrogators and guards, and spoke with “about a dozen” detainees. The team also observed “enteral” feedings of hunger-striking prisoners, which entails inserting a tube down the detainee’s nose to his stomach to pump in a protein shake twice a day as the detainee is shackled to a chair and his head attached to a metal restraint with Velcro. Adm. Walsh concluded that the detainees at the prison are being held “in conformity with all applicable laws governing the conditions of confinement, including Common Article 3 of the Geneva Conventions.” Secretary Gates endorsed the report and sent it to President Obama over the weekend.

This is the Department of Defense (DoD) review ordered by President Obama under Section 6 of his January 22, 2009 Executive Order (PDF) to determine whether conditions of confinement at Guantánamo conform to Common Article 3 of the Geneva Conventions and to "other applicable laws." Common Article 3 provides that all detainees are legally entitled to humane treatment in all circumstances. Detainees may not be subject to “cruel treatment and torture” or “outrages upon personal dignity, in particular, humiliating and degrading treatment.”

As we all now know, the Bush administration’s views of what constitutes humane treatment have been far off the mark, and led Major General Antonio Taguba (who investigated the abuses in Abu Ghraib) to conclude that “there is no longer any doubt as to whether the current administration has committed war crimes.” It is hard to trust the current Pentagon leadership’s definition of humane treatment and, in fact, Adm. Walsh’s report ignores definitions already set forth in international human rights law and standards when it alleges that “there is no clear definition of `humane’ treatment, in either U.S. or international law.”

Adm. Walsh does not recommend changes that would address the many violations of international and domestic law that the ACLU and other groups, including the detainees’ own lawyers, have identified. Here are some initial points that the report failed to address or consider sufficiently:

• It does not take into account human rights law and standards (including the International Covenant on Civil and Political Rights) in the review even though such standards are part of the United States’ treaty obligations. In a letter the ACLU wrote to the Assistant Secretary of Defense in early February, at the request of the Pentagon, we urged the review team to ensure it considered these standards.
• It does not take into account that prisoners brought to Guantánamo as juveniles— including the four currently being held there (Omar Khadr, Mohammed Jawad, Mohammed Khan Tumani and Mohammed el Gharani)—are entitled to special treatment, including special housing, and reintegration and rehabilitation programs, under the United States’ binding treaty obligations.
• It does not adequately examine the use of force and violence against prisoners by the so-called “Immediate Reaction Force,” e.g., most recently, the mistreatment of Binyam Mohamed who was freed from Guantánamo yesterday but arrived home to Great Britain with fresh bruises.
• It glosses over the fact that the use of sensory deprivation is still permitted. For example, sleep deprivation continues to be employed (and is enhanced by the use of 24-hour fluorescent lights), as are purposefully loud sounds of guard activity throughout the night, and 2 a.m. wake-up calls for recreational activities. More details of these abusive practices are recounted in the Center for Constitutional Rights’ report on the current conditions in Camps 5, 6, and Echo.
• It legitimizes inhumane force-feeding.
• It inadequately presents the input from NGOs and their critique of current conditions and does not provide information about which detainees were picked for interviews, and if they constituted an accurate representation of the larger population of detainees at the camp.

While the report does refer to the devastating effects of prolonged indefinite detention without charge on conditions of confinement, the review team denies that the current policies—of prolonged and indefinite detention—are punitive or constitute a form of collective punishment. The report instead effectively directs blame for the inhumane conditions in which they are kept on the prisoners themselves, alleging that these men, the vast majority of whom have been held without charge or process for eight years, engage in acts of “defiance, non-compliance with camp rules, and manifestations of self harm or attempts to injure or kill camp personnel.” Disturbingly, the report cites several U.S. federal court decisions and federal bureau of prison standards and polices to justify the current inhumane conditions at Guantánamo -- a stark reminder of the inhumane and cruel standards very often permitted in our prison systems under U.S. Supreme Court interpretation of what constitutes cruel and unusual punishment.

No one denies that conditions at Guantánamo have improved over the years, especially with regard to interrogation methods, and the report does make some helpful suggestions, including that interrogations be videotaped, that the repatriation of detainees should be expedited, and that “further socialization is essential to maintain humane treatment.” The report must not be seen as vindication for seven years of illegal Bush detention and treatment policies at Guantánamo. Adm. Walsh’s 13-day review of Guantánamo, by design, provides only a snapshot of Guantánamo at this moment in time, and a questionable one at that, given the inability the Defense Department to police itself and what’s known about conditions at the prison camp. Moreover, Adm. Walsh himself acknowledges his team did not scrutinize whether the camp had complied with the Geneva standards throughout its history or interview former prisoners who claimed they were tortured.

The ball is now in the President’s court to permit that truly independent review and to improve conditions immediately. The ACLU and other human rights groups requested full access to the camps to do their own review of camp conditions in late January. As Adm. Walsh himself recognized, in a recommendation to President Obama:

[c]onsider inviting non-governmental organizations and appropriate international organizations to send representatives to visit Guantánamo, in a manner that does not jeopardize the current relationship with the ICRC and is consistent with security and safety of the detainees and guard force.

This will be another test of whether the President abides by his declared intention of breaking from disastrous Bush administration policies.

(Originally posted on Daily Kos.)

On Wednesday, I observed two hearings: the first was in the case of Omar Khadr, the young Canadian who was arrested at the age of 15 and has been detained now for more than six years. The second was the arraignment of Ahmed Ghailani, who has been charged in connection with the 1998 Tanzanian bombings, and was one of about 14 men now at Guantánamo who were subjected to the CIA's secret interrogation and detention program.

Khadr's hearing yesterday morning focused largely on issues that have been contested in every military commissions case so far: a dispute about the defense's access to information in the government's possession, including possible evidence of coercion, and a dispute over what constitutes an offense that can be prosecuted as a war crime in the military commissions. Because such fundamental issues are still unsettled, and because it appears Khadr's mental state is of concern (as I discuss below), Khadr's lawyers have asked that his trial, which is currently scheduled to start on November 10, be postponed.

The principal dispute over evidence — or "discovery" in lawyers' parlance — focused on the defense's request for access to seven U.S. "intelligence" interrogators who defense lawyers say are key to establishing the coercion Khadr initially suffered in U.S. custody in Afghanistan, while he was critically wounded. According to his lawyers, those initial harsh interrogations resulted in false information that interrogators transferred to Guantánamo. At Guantánamo, Khadr's lawyers say, the false information served as the basis for interrogations by law enforcement personnel who used more "sterile" and "benign" techniques. The prosecution has indicated it intends to rely solely on the law enforcement interrogations. Khadr's lawyers, however, argue that the reliability of the second set of interrogations is undermined by the coercion and abuse of the first set: to establish the extent to which Khadr felt coerced during the law enforcement interrogations, the lawyers say, they need to know what happened to Khadr in U.S. custody in Afghanistan.

Not surprisingly, the prosecution objected to the defense's discovery request, and said that it was both too late (four months after what prosecutors said was a court-imposed deadline) and "a fishing expedition." Still, upon questioning from the judge, the government conceded that what happened during the intelligence interrogations could impact the subsequent law enforcement interrogations. Prosecutors insisted, however, that "there needs to be a showing" by the defense that coercive interrogation practices were used, and they argued that any such allegations were entirely "speculative." This line of argument would not likely succeed in a regular military or civilian criminal court, in which the standard for discovery generally places the burden on the government to give the defense information that may assist the defense. In any event, the government's argument flies in the face of what the world knows: that coercive interrogation practices were systemically used at Bagram and Guantánamo, and Khadr himself was a victim of these practices. For just one example of an interrogator describing the practices see the recent CBC documentary which features one of these interrogators describing regretfully what he had done.

The judge did not appear impressed with the prosecution's arguments, which relied also on the assertion that providing information about, or access to, the seven interrogators three weeks before the trial would be an undue burden on the government.

The second issue discussed during the hearing was the meaning of the term "in violation of the law of war"; under the Military Commissions Act of 2006, only offenses that violate the law of war can be tried in military commissions. The government's position essentially is that once a person is found to be an "alien unlawful enemy combatant," any wrongful act by that person can be a violation of the law of war. The defense, on the other hand, argued that a person's alleged status is not enough to establish that a crime has occurred. Instead, according to the defense, the government has to show that the person engaged in acts that violate the established laws of war, e.g., causing harm to civilians or civilian property, or using prohibited means and methods of warfare such as poison gas or human shields. The judge said he would announce his decision later, but asked both sides to provide him with proposed jury instructions on the issue.

The rest of the hearing focused on the defense's request for a continuance, a request based on the fact that discovery is not yet complete (as I describe above), and also because there appears to be an issue about Khadr's mental health.

Khadr's lawyers told the judge that although the defense had requested an independent psychiatric examination of their client in May 2008, the defense's expert was not permitted to meet Khadr until October 13. Based on the expert's initial evaluation, it seems the defense submitted information to the judge (we were unable to tell what the information was) that prompted him to ask the defense if Khadr's competency to stand trial was likely to be an issue. The defense was noncommittal, saying that competency was something that needed to be determined, and to do so, the defense expert needed to establish a rapport with Khadr and further examine him, a process that could take time. The defense's argument for a continuance was supported by the fact that the delay is partly of the government's making: the prosecution fought the defense's request for an independent medical expert, delayed in providing her the necessary security clearance, and has also failed to provide the defense with Khadr's psychiatric records. Although the judge did not rule today on the defense's motion for a continuance, the hearing ended with the sense that the trial would not take place until January at the earliest.

In the afternoon, I attended the arraignment of Ahmed Ghailani, a Tanzanian, who is charged, among other things, with participation in the 1998 bombing of the U.S. Embassy in Tanzania. Ghailani's arraignment was not particularly enlightening. The judge essentially followed a script, advising Ghailani about military commission procedures, informing Ghailani that he has a right to obtain civilian counsel in addition to his assigned military counsel, and repeatedly asking Ghailani if he understood what was going on. The government has stated that it would be ready to go to trial in Ghailani's case in February, 2009.

Ghailani was indicted 10 years ago in the Southern District of New York for the same crimes that are now the basis for the military commission charges, and several of his co-defendants in the federal proceedings have already been convicted and sentenced after trial in that court. He was captured in July 2004, but instead of prosecuting Ghailani in the established, tested and credible criminal justice system, the government decided to hold him in secret custody abroad, possibly subjected him to the CIA's euphemistically-named "enhanced interrogation techniques," and then decided to try him in a military proceeding. No doubt each of these decisions will be an issue as the government's case against Ghailani proceeds.

The government's prosecution team has been trying to pressure Judge Peter Brownback, the military commission judge at Guantanamo, to hurry along the trial of Omar Khadr, the now-21-year-old Canadian Guantanamo detainee accused of lobbing a grenade that killed U.S. Special Forces medic Christopher Speer. Khadr was 15 when he was captured.

News from Guantanamo this afternoon tells of Brownback expressing frustration with the prosecution for not providing the necessary documentation showing the day-to-day of Khadr's six-year detention at Gitmo. The AP reports:

At a pretrial hearing, Judge Peter Brownback, an Army colonel, criticized the prosecution team led by Marine Maj. Jeffrey Groharing for demanding an expedited trial despite failing to obtain the documents from the detention center.

"I have been badgered, beaten and bruised by Maj. Groharing since the 7th of November to set a trial date," Brownback said. "To get a trial date, I need to get discovery done."

ACLU staff attorney Amrit Singh is in Guantanamo right now overseeing these pre-trial hearings as a human rights observer. She'll have more on today's developments in our DailyKos Diary tomorrow.

Today, she wrote about the pretrial hearing of Mohammed Jawad, another teen who was captured in Afghanistan and has been held at Guantanamo for six years:

At the outset of the proceedings, Jawad's military lawyer, Major David Frakt, informed the military judge, Colonel Peter Brownback, that although Jawad did not believe that he could get justice before the military commission, he had agreed to let Frakt represent him for the sole purpose of challenging the legitimacy and legality of the commission proceedings. Remarkably, when the judge asked government counsel if he had a response, he retorted that he had not anticipated that Jawad would make such an "idiotic request." Although that statement was subsequently withdrawn at the judge's direction, it was emblematic of the intemperate and contemptuous tone adopted by government counsel throughout the proceedings.

So not only did the prosecution insult the defense team, but it showed just how ignorant it is of what is going on with the military commission. Anyone reading the news about Guantanamo knows that several detainees have challenged the legitimacy of these commissions at their hearings. So to not anticipate this...well, that's idiotic.

This week the military commissions resumed at Guantanamo Bay with the scheduled hearings of three detainees: Sudanese national Ibrahim Ahmed Mahmoud al-Qosi, Saudi national Ahmed Mohammed al-Darbi and Canadian national Omar Ahmed Khadr.

Today's New York Times profiled the roadblocks that military prosecutors and defense attorneys are grappling with as the military commissions lurch along. Reporter William Glaberson writes that while the Pentagon's Thomas Hartmann attempts to accelerate the pace of the proceedings,

The road to a trial is difficult in some cases partly because they involve potential death penalties and claims of torture by interrogators, issues that raise thorny legal questions that could take months or longer to sort out. But even comparatively simple cases without capital penalty issues are proceeding slowly.

The ACLU, along with the National Association of Criminal Defense Lawyers (NACDL), has assembled groups of highly experienced attorneys available to assist in the detainees' defense. The effort, which we've dubbed the John Adams Project, is our attempt to bring some fairness to the process and raise awareness about its deep flaws. Glaberson describes how the deck is already stacked against the detainees:

Guantanamo military defense lawyers have long said they are not given resources by the Pentagon to match the investigative capability of the military prosecution, which draws on the Federal Bureau of Investigation, Central Intelligence Agency and other agencies. Until a handful of new military lawyers were appointed this week to represent Sept. 11 defendants, the military defense office was sharply outnumbered, with 15 defense lawyers to battle 31 prosecutors.

Some of the most egregious problems with the commissions are that they allow the use of secret evidence, hearsay, and evidence possibly derived from torture. ABC News has now reported that the White House approved the torture techniques used by military and intelligence personnel abroad. According to the article, authorization to torture came from the top:

The advisers were members of the National Security Council's Principals Committee, a select group of senior officials who met frequently to advise President Bush on issues of national security policy.

At the time, the Principals Committee included Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.

The article states: "According to a top official, Ashcroft asked aloud after one meeting: "Why are we talking about this in the White House? History will not judge this kindly."

Indeed, it will not.

In their book, Administration of Torture, ACLU attorneys Jameel Jaffer and Amrit Singh drive home the point that top officials in the Bush administration have yet to be held accountable for their involvement in the abuse and torture of detainees in U.S. custody.

Just yesterday, Jamil Dakwar, Director of the ACLU Human Rights Program, attended al-Darbi's hearing as a human rights observer. Jamil watched as al-Darbi, who was abused while in U.S. military custody, denounced the military commissions as illegitimate, refused to accept legal representation by the defense lawyers provided by the military and demanded an attorney from Saudi Arabia instead-which he will not be allowed. Jamil blogged about yesterday's hearing in DailyKos.

Our effort to draw attention to the injustices at Guantanamo ventured into Second Life a few months ago, and today, VanityFair.com profiled Gone Gitmo, a virtual Guantanamo that depicts the now-defunct Camp X-Ray, the cyclone fence holding area where detainees were held until they were moved to indoor cells. We've collaborated with Gone Gitmo creators Nonny de la Peña and Peggy Weil on a few Second Life events to promote awareness of the abuses at the online detention facility, most notably our January 11, 2008 Close Guantanamo event. Most recently, ACLU staff attorney Ben Wizner, who has witnessed the military commission hearings at Guantanamo as a human rights observer, answered questions from Second Lifers on March 19.