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Pentagon report on Guantánamo detainees: incomplete?

The Pentagon should have included more laws in its assessment of conditions, some experts argue.

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"The whole thing is a sham," says Ramzi Kassem, a lecturer at Yale Law School who represents detainees at Guantánamo. "There are all kinds of problems with the way this was done."

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Mr. Kassem has been urging Pentagon officials to embrace a broader perspective on the legal restrictions that apply at Guantánamo. "Conditions at Guantanamo are subject to both international law and US law, including the US Constitution," he wrote in a Feb. 10 letter to Defense Department officials. "US obligations under international law – both international law of war and international human rights law – are not limited to Common Article 3."

Diane Marie Amann, an international law and military law expert at the University of California, Davis, School of Law, agrees. "There are any number of laws that may apply," she says.

"When the president said 'all applicable laws,' he meant that there should be an exhaustive review of all applicable laws," Professor Amann says. "That would mean laws like the main Geneva Conventions, customary international law, the International Covenant on Civil and Political Rights, and any federal rules with regard to custody."

She acknowledges that Walsh's job was not easy. "In many ways, the Pentagon was put to a Hobson's choice," she says. "Any conclusion that applicable law was not followed, particularly Common Article 3, would be an admission that they are violating the law."

The Walsh report, while announcing across-the-board compliance with Common Article 3 standards, also makes a series of recommendations that suggest significant past problems.

It calls for increased use of videotaping of detainee-guard interactions, greater opportunities for group recreation and other socialization to counter mental-health problems associated with spending years alone in a cell, and creating a fire wall to separate detainee medical and psychological information from use by interrogators.

Despite the report's categorical statement that no detainees are held in conditions of isolation, it nonetheless strongly recommends that prisoners held at the once-top-secret Camp 7 be allowed the ability to communicate with one another from within their cells. What that means is that the prisoners be allowed to shout to one another.

In maximum-security Camps 5 and 6, detainees live alone in their cells 20 to 22 hours a day. Camp officials say the conditions do not amount to illegal isolation because detainees can yell to a neighboring cell under the crack between the concrete floor and the steel door.

The Walsh report says: "[D]etainees in Camp 7 are housed in cells that do not permit communication with adjacent cells." It adds, "Detainees in Camp 7 also do not have the same level of socialization as detainees in other camps."

Kassem says the conditions of detention violate even the baseline standards of Common Article 3.