Rashomon at Gitmo

To read the accounts of detention conditions at Guantanamo this week coming from the latest DOD review on the one hand, and detainee lawyers on the other, you’d think the reporters had visited not just different prisons, but prisons on different planets.

Report #1 is the product of President Obama’s executive order of January 22, charging the Defense Secretary with ensuring that all detainees at Gitmo are being held “in conformity with all applicable laws governing the conditions of confinement, including Common Article 3 of the Geneva Conventions.” The report, produced by Admiral Patrick Walsh in a lightening-fast 13 days, interestingly, doesn’t purport to draw a conclusion with respect to “all applicable laws.” (Not really clear, for example, whether the task force assumed the U.S. Constitution applies. It is not listed among sources of authority the report lists in its reasonably extensive legal bibliography.) It does, however, find that the conditions of confinement at Gitmo “are in conformity with Common Article 3 of the Geneva Conventions.” Standard operating procedures and guard training at Gitmo prohibit excessive force or violence, and the instances in which guards have violated these policies have resulted in discipline. Detainees are “never placed in solitary confinement or isolation.”

Report #2 comes from the Center for Constitutional Rights, the organization that has been coordinating habeas representation for the Gitmo detainees. According to the press release:

….[D]etainees at Guantanamo have continued to suffer from solitary confinement, psychological abuse, abusive force-feeding of hunger strikers, religious abuse, and physical abuse and threats of violence from guards and Immediate Reaction Force teams. The majority of the men being detained are in isolation. They go weeks without seeing the sun. Fluorescent lights, however, remain on 24 hours a day in Camp 5. According to the report, “improvements” cited by the military are, by and large, public relations activities rather than meaningful improvements in detainees’ conditions.

It also describes specific allegations of recent abuse:

“On the afternoon of January 7, 2009, Yasin Ismael was in one of the outdoor cages of Camp 6 for “recreation” time. The cage was entirely in the shade. Mr. Ismael asked to be moved to the adjoining empty cage because it had sunlight entering from the top. The guards, who were outside the cages, refused. One guard told Mr. Ismael that he was “not allowed to see the sun.” Angered, Mr. Ismael threw a shoe against the inner mesh side of the cage; which bounced harmlessly back onto the cage floor. The guards, however, accused Mr. Ismael of attacking them and left him in the cage as punishment. He eventually fell asleep on the floor of the cage, but hours later he was awakened by the sound of an IRF team entering the cage in the dark. The team shackled him, and he put up no resistance. They then beat him. They blocked his nose and mouth until he felt that he would suffocate, and hit him repeatedly in the ribs and head. They then took him back to his cell. As he was being taken back, a guard urinated on his head. Mr. Ismael was badly injured and his ear started to bleed, leaving a large stain on his pillow. The attack on Mr. Ismael was confirmed by at least one other detainee.”

Let me set aside for the moment the complex issue of forced feedings (which both sides acknowledge but on which they take opposing ethical positions). Whom to believe on the overall picture of the facts? I have no reason to doubt Admiral Walsh’s personal integrity. Many members of the military who have served at Gitmo (including some I count as friends) have been admirable whistleblowers and internal opponents of bad behavior. (It was General Taguba’s report, after all, that was critical in shedding light on Abu Ghraib.) That said, DOD’s track record at Guantanamo Bay is far from unblemished. And all organizations, civilian and military, have pathologies that lead them to protect their own. There is, understandably, reason to doubt DOD’s word.

On the other hand, habeas counsel, some of whom I also count as friends, deserve the reputation they have earned as principled advocates for the law and the least among us. They are also serving as lawyers, with important and singular ethical obligations toward their particular clients. Some detainees may have very strong claims of active abuse. Other detainees may suffer conditions of confinement that, while harsh, are not unlawful under U.S. or international law. For other detainees, the years of prolonged uncertainty about their fate have simply – and unsurprisingly – made it impossible to cope under any circumstances. When the habeas lawyers speak as a group, it is hard to assess what fraction of the 200-some detainees are subject to unlawful conditions of detention.

Fortunately or no, it is possible to glean value from these reports without coming to closure on the underlying facts. For the most important contribution the reports make is the recommendations for next steps. And here, there are some key areas of consensus.

To enhance mechanisms for guarding against the kind of beating allegations the CCR report describes (and Walsh at least in certain instances acknowledges), DOD urges videotaping “to monitor performance and maintain accountability” in all camps and in all interrogations. (CCR doesn’t speak to this recommendation, but one might imagine it could only help illuminate the facts and substantiate detainee allegations.) To guard against the profound psychological effects of significant “isolation” (however defined), both reports recommend increasing detainees’ contact with one another and (in various ways) the outside world. CCR demands outside access by independent medical professionals and independent human rights observers. DOD agrees that the government should “consider inviting non-governmental organizations and appropriate international organizations to send representatives to visit,” as long as the openness doesn’t compromise the security of the guards or detainees, and as long as it doesn’t jeopardize the ICRC’s special status and role under international law.

There is no agreement on the vexing problem of keeping hunger striking detainees alive. And there may be no conditions of incarceration that can help those detainees who are suffering acutely from what might be the irremediable harm of prolonged detention with an uncertain fate. But the reports plainly find common ground on a number of steps forward. If there’s any good news: the administration doesn’t need to sign off fully on either factual account to get started making Gitmo conditions better.