Guantánamo Naval Base, February 6, 2008: Hamdan to Request Transfer from Solitary Confinement
When I visited the headquarters of the U.S. Southern Command (SOUTHCOM) in November 2007 – the Pentagon’s combatant command under which U.S. forces at Guantánamo fall – a U.S. military officer there asserted that conditions at Guantánamo had improved significantly over the past year and now compare with the “best-run prisons” in the United States. Perhaps conditions have improved. But the vast majority of Guantánamo’s detainees are still housed in solitary confinement in Camps 5 and 6, under heavily restrictive conditions that may be harming their mental and physical health. At a military commission pretrial hearing tomorrow, detainee Salim Ahmed Hamdan is expected to request a transfer out of Camp 5, where he has been held most recently for approximately six weeks. Hamdan is alleged to have served as bodyguard and driver for Osama bin Laden.
He has been kept in solitary confinement at various points throughout his more than four years of detention at Guantánamo. Before Camp 5, he was held in solitary confinement in Camp 6 for nearly a year. Camps 5 and 6 are both maximum-security facilities where detainees are kept in small, single-occupancy cells with meals served through a slot. The cells in Camp 6 are completely cut off from natural light and air, and detainees are confined to their cells for up to 22 hours per day. Hamdan’s lawyers say the government has given no justification for his solitary confinement. They contend that Hamdan was housed in Camp 4 without incident under much less restrictive conditions for more than two years. Detainees in Camp 4 live in communal barracks where they can eat, pray and exercise together. Though initially designed to hold about 175 “compliant” inmates, Camp 4 now houses fewer than 50 of the remaining 275 Guantánamo detainees. In the aftermath of a reported detainee riot in Camp 4 in May 2006 and following a hunger strike and the deaths of three detainees from apparent suicide in June 2006, the U.S. government apparently decided to move as many detainees as possible into the much more restrictive Camps 5 and 6 – without apparent regard to whether Hamdan or many of the other detainees moved out of Camp 4 had themselves engaged in any misconduct. In a report released last year, Amnesty International (AI) stated it believes detainees have been transferred to Camps 5 and 6 simply because “there was room.” According to AI, even some detainees formally determined to be not a threat so as to be designated for release from Guantánamo have been housed in solitary confinement Camps 5 and 6.Hamdan’s lawyers will argue tomorrow his mental state has deteriorated considerably over the last year, largely because of the solitary confinement. They will rely in part on an affidavit prepared by psychiatrist Dr. Emily Keram, who reports that Hamdan suffers from nightmares and insomnia, anxiety and irritability, and displays signs of major depression and post-traumatic stress disorder. Pretrial confinement of course can be legally permissible, but pretrial punishment violates both constitutional and international law. So one issue tomorrow will be whether Hamdan’s conditions have crossed the line from detention to punishment. Hamdan’s lawyers will also argue that his placement in solitary confinement has interfered with his relationship with his lawyers and impeded his ability to assist in his own defense: In a separate affidavit, one of Hamdan’s lawyers, Andrew Prasow, says that Hamdan blames his attorneys for his confinement in Camp 5, questions their motives, and has recently grown so desperate that he is having difficulty focusing on the details of his case. The severe conditions in Camps 5 and 6 – according to AI, in some respects conditions in these two camps “appear more severe than the most restrictive levels of ‘super-maximum’ custody on the US mainland, which have been criticized by international bodies as incompatible with human rights treaties and standards” – inevitably raise concern about conditions in Camp 7, the newest facility here at Guantánamo. Guantánamo officials have only very recently even confirmed Camp 7’s existence, but they refuse to disclose where it is located on the base. It is widely believed that Camp 7 houses the 15 so-called “high-value” detainees (HVDs), all of whom were transferred to Guantánamo in September 2006 after various periods – periods measured in years in most cases – of secret CIA detention and “enhanced” interrogation abroad. A military spokesman said yesterday that Camp 7 is run by the Department of Defense, and members of the press and visiting dignitaries are prohibited access per order of Defense Secretary Robert Gates. It is unknown whether the CIA continues to interrogate these HVDs now that they are at Guantánamo, and if they do whether they continue to use any “enhanced” interrogation techniques.Debates Continue Regarding Access to Classified Evidence At a press conference today with the Office of Military Commissions chief prosecutor and chief defense counsel, conversation remained focused on the issue of classified evidence – centering around the government’s investigative report in Omar Khadr’s case that was mistakenly released to the press on Monday (and discussed in my February 5 posting), and on Salim Hamdan’s ongoing request to interview HVDs.Chief prosecutor Colonel Morris insisted that his office is committed to providing defense counsel with “every scrap” of exculpatory evidence, and added that the investigative report in Khadr’s case had been turned over to the defense long ago. But public access to this evidence is another matter. According to Morris, there were “bits of data” in the Khadr document, including names and locations, that may have put American soldiers at risk. “There will always be evidence for the defense that will not go to the public,” said Morris. Undoubtedly there may always be some evidence in cases such as these that may and should be withheld from public release on legitimate national security grounds. In the regular criminal courts there is a statute – the Classified Information Procedures Act (CIPA) – that sets out clear procedures for doing just this. But classifying evidence as secret should be the exception rather than the rule, and done only when – and only to the extent – it is truly necessary. But in Guantánamo it seems the exception is the rule. Why has so little of the evidence in Khadr’s case been released? Can it truly be that almost all of it should be classified? This seems doubtful. In fact, Colonel Morris provided members of the press today with an only-lightly-redacted version of the Khadr document, raising the obvious question why it could not have been released in this redacted form before. How much other evidence is being withheld from public view? Khadr defense counsel Lieutenant Commander William Kuebler charged on Monday that the government is playing games with classification, “dribbling” out evidence for public consumption only when it benefits the prosecution. Whether this is true or not, one thing is certain: the government’s continued failure to provide public access to evidence can only further undermine the public’s trust in these proceedings.Colonel Morris said today that he had objected to Hamdan’s request to interview HVDs because the defense failed to show how the detainees could help Hamdan’s case. Even in civilian courts, where defense counsel have access to more broad-ranging discovery (in some states, discovery includes everything in the prosecutor’s files) it can be a challenge to explain how a particular witness may be helpful without having spoken to the witness first. But here in Guantánamo, where such a large quantum of the evidence – including interrogation methods, and even witnesses – has been classified and withheld from the defense, it is immensely more difficult. Nevertheless, the Hamdan defense team has made a perfectly reasonable proffer regarding how a couple of the HVDs could indeed bolster Hamdan’s defense. In theory, the military commission rules guarantee the parties an adequate opportunity to prepare their case and prohibit parties from unnecessarily withholding evidence from the other side. Given the rules on classification and access to the HVDs, however, this may prove to be an empty promise.This brings us back to the only recently-revealed existence of Camp 7. Colonel Morris also said today that even the Hamdan prosecutors have no access to the HVDs in Camp 7. So it’s hard to know the extent to which the government’s refusal to provide Hamdan’s lawyers with access to the HVDs truly stems from defense counsel’s failure to show potential materiality, or whether the HVDs are being kept from both sides for security reasons. Perhaps it’s a bit of both. But Colonel Morris’ struggle today to give a fully coherent answer is just the latest demonstration of the continued uncertainty with the military commission process. Defense chief counsel Colonel Davis listed the myriad issues surrounding classified evidence that still need to be resolved by the military commissions, including who the gatekeepers are, who has access to the evidence and under what circumstances. Listening to Colonel Davis, I couldn’t help but wonder how much more effective it could be to try these cases in the regular civilian courts, where experienced judges make rulings based on time-tested, clear laws and procedures.