Military Commission Trial Observation

Human Rights First, at the invitation of the Department of Defense, is an official observer at the military commissions held at the U.S. Naval Base at Guantanamo Bay, Cuba.

Priti Patel – a lawyer at Human Rights First in the U.S. Law and Security Program – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.

April 26, 2006

Defendant Testifies Before the Military Commissions Regarding Confinement

Today was a landmark day for the military commissions and a sad day for the rule of law. This afternoon was the first time that a defendant, in this case Sufyian Barhoumi, testified before the commissions during a defense motion challenging his transfer by the United States from Camp 4, a medium security facility, to Camp 5, a maximum security facility. The motion brought on Barhoumi’s behalf by his detailed military defense counsel, Cpt. Wade Faulkner, asked the Presiding Officer, Navy Cpt. Daniel E. O’Toole to either order the government to move Barhoumi back to Camp 4, or in the alternative to move to abate the proceedings until Barhoumi was moved back to Camp 4.

Testimony of Col. B

Before I tell you about Barhoumi’s testimony, I wanted to mention another historical moment that occurred today. Prior to calling Barhoumi to the witness stand, Cpt. Faulkner called Col. B, who runs detention operations at Guantanamo to testify. Despite Col. B being quoted with his full name in numerous public documents, we were told to use only his last initial. Col. B ordered the transfer of all pre-commission detainees to Camp 5. (There is one pre-commission detainee not currently at Camp 5, but it was unclear why that is).

Col. B offered the following description of Camp 5: Camp 5 was opened in May 2004. It is a maximum security facility that could house up to 100 individuals. Currently are were about 75 individuals held there. There are four wings and two tiers. Each detainee is held in a closed concrete cell with a metal door. In the cell there is a metal bunk and a Western style toilet. There are two recreation yards. While in their cells, it is hard for the detainees to be able to see each other. There is a small viewport, about one foot by one foot in each of the cells and when it is open (for meals and during prayer) the detainees can talk to each other. According to Col. B’s testimony, Barhoumi receives two hours of recreation time per day. He also said that Camp 5 houses high value detainees and detainees that are highly compliant, compliant, and those on discipline. But Col. B acknowledged that a very small percentage of the Camp 5 population is highly compliant.

On the other hand, Col. B testified that Camp 4 (where Barhoumi was held until his March 30, 2006 transfer) was a communal camp. Detainees at Camp 4 are held together in groups with a central latrine and shower in the center of each block. There is a large recreation yard with a small soccer field, a volleyball and basketball court. At Camp 4, detainees are allowed between 10-14 hours of recreation time per day. And Col. B described meal times as family picnics. There is no effort made to stop communication between detainees and in fact Col. B said that would be impossible. Camp 4 holds 175 people; detainees who are considered highly compliant are held there.

According to Col. B, the decision to move the pre-commission detainees to Camp 5 was made during a larger restructuring of where detainees are held and to ensure effective use of all bed space. Col. B added that his goal was to run a peaceful, safe and secure facility.

Col. B also testified that he looked to Article 103 of the Third Geneva Convention, Army Regulation 190-47 (I believe at Ch. 3-2), covering the Army Corrections System and Army Regulation 190-8 (I believe he was referring specifically to s. 3-7(h)) in his decision to segregate the pre-commission detainees from the larger population. According to Col. B under AR 190-47 pre-trial detainees should be segregated from post-trial individuals. He went onto say that there was nothing prescriptive telling him that he had to segregate pre-trial detainees, and that this was his call. He then testified that there was not a singular document that covered operations at Guantanamo, but that he was looking to the Army Regulations and the Geneva Conventions and trying to make the best decision he could. The prosecutor reinforced the point during his cross-examination of Col. B that none of these aforementioned laws were binding in this context.

Now, where to start on what is wrong with Col. B’s reasoning? First, the government continues to invoke various treaties, regulations and other laws when it suits its purposes, but does so as a matter of policy, rarely, if ever, as a matter of binding legal obligation. One of the biggest criticisms of the United States’ detention and interrogation operations at Guantanamo continues to be that it does not abide by the basic principles underlying the rule of law. With the President’s February 7, 2002 memorandum directing that detainees only be treated humanely as a matter of policy, all laws regulating the United States’ conduct at Guantanamo were essentially off the table. More specifically, a closer reading of the Army Regulations and the Third Geneva Conventions do not indicate that pre-commission detainees need to be segregated from the larger population. Under the Third Geneva Convention, among its many other protections, pre-trial detainees are to be treated the same as soldiers of the Detaining Power, in this case the United States. Under U.S. military law, there are two major reasons that a pre-trial detainee can be confined—to prevent escape or to prevent further crimes. According to both Col. B’s testimony and Barhoumi’s testimony, there was no specific fear that Barhoumi was going to try to escape nor that he would be a security threat to himself or anyone else. But let me tell you more about Barhoumi’s testimony.

Testimony of Barhoumi

Barhoumi was escorted to the makeshift witness stand by two military personnel with their name tags covered with duck tape. Barhoumi was questioned by both Cpt. Faulkner and the prosecution. During his testimony, Barhoumi testified that he has been at Guantanamo for almost four years and that he had been in Camp 4 for almost a year. During the time he was in Camp 4 he didn’t cause any problems, nor was he subjected to any threats from other detainees. He also mentioned that he had never tried to escape nor did he try to take his life at Camp 4. Despite his good behavior, he testified that he was moved to Camp 5, which he said is known as the punishment camp. He was never told why he was being moved there. In Camp 5, Barhoumi testified that things are more difficult for him. His injured hand hurts him more because he doesn’t have as much time outside in the sun and the toilet facilities are such that it hurts his hand to use them. More importantly, his move to Camp 5 has negatively affected his relationship with his military lawyer. Until this morning, Barhoumi testified that he was planning to boycott the proceedings because of the transfer to Camp 5. He went onto to say that he saw his move to Camp 5 as a form of punishment. According to Barhoumi, it took Cpt. Faulkner two days to convince him to participate in the proceedings today and to litigate the issue of his transfer.

After spending the day hearing testimony from Col. B and Barhoumi and hearing legal arguments from both sides, Navy Cpt. O’Toole issued his ruling. It didn’t come as a surprise, and yet it was incredibly disappointing. Cpt. O’Toole denied the defense’s motion to have Barhoumi transferred back to Camp 4. During the entire reading of his summary ruling, Cpt. O’Toole did not clarify under what legal standard he was making his decision. At one point he mentioned U.S. courts and the U.S. Constitution but it was unclear whether he was considering either applicable to these proceedings. And here in lies the major problem with the military commissions. Apart from knowing that “commission law” applies to the commissions, it continues to be completely unclear what other laws apply---do the U.S. Constitution, U.S. military law, U.S. domestic law, international humanitarian law, and international human rights treaties signed and ratified by the U.S. apply to these proceedings? Who knows. And this is, of course, completely contrary to the notion of the rule of law. I admit that I do not envy the defense lawyers who are tasked with making already difficult legal arguments in a process where there is no clarity on what laws and court decisions are applicable.

And lastly, the issue of Barhoumi’s hand injury came up today during the proceedings. A number of news articles, and my blog [] indicated that he was born with the injury. Other news articles reported that there was no information on how he received the injury. Cpt. Faulkner today indicated that there had been some confusion on this point and clarified that Barhoumi was not in fact born with the injury, but hurt his hand as a result of a land-mine explosion in Afghanistan.

Tomorrow the hearing for Ghassan Abdullah al Sharbi is scheduled. His lawyers have mentioned that he is refusing legal representation and we may see a replay of the issues raised at al Qahtani’s hearing on Tuesday. Stay tuned.

Previous Diary Entries

Read previous posts from Human Rights First observers.

Related Links

Military Commissions: An Overview

Read about the Individual cases