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.