President Obama has pledged to close the US terror prison camp at Guantánamo within a year, but before that happens he must decide whether to continue controversial detention policies enacted under the Bush administration.
Setting the stage for that anticipated policy debate, Mr. Obama issued an executive order last month directing the Pentagon to determine whether detainees at Guantánamo were being held "in conformity with all applicable laws governing conditions of confinement."
Adm. Patrick Walsh, the vice chief of naval operations, conducted a 13-day investigation and compiled an 81-page report. He announced his findings in a press conference on Monday. "After considerable deliberation and a comprehensive review, it is our judgment that the conditions of confinement in Guantánamo are in conformity with Common Article 3 of the Geneva Conventions," Admiral Walsh said.
What he did not tell members of the media – or discuss in his report – is whether operations at Guantánamo are "in conformity with all applicable laws governing conditions of confinement."
The report examines 27 aspects of detention operations – including solitary confinement, forced feeding of hunger strikers, and the use of force by guards – and announces 27 judgments that Guantánamo operations are in compliance with the standards of Common Article 3.
But it leaves unanswered the larger question suggested in the president's order: What other laws apply to Guantánamo detainees?
Common Article 3 is a default provision within the Geneva accords. It provides the bare minimum in safeguards, humane treatment.
In contrast, other sections of the Geneva accords mandate more robust protections.
According to the report, the Walsh team "reviewed" the Geneva Convention on Prisoners of War and the Geneva Convention on Civilians. But there is no discussion of whether those laws were deemed applicable – or inapplicable – to the review of conditions at Guantánamo.
Some legal experts say that detainees who fought alongside the Taliban are entitled to the full protections of the Geneva Conventions and that others picked up as civilians should qualify for a higher level of protection than the bare minimum of Common Article 3.
Lawyers representing Guantánamo detainees in ongoing habeas corpus petitions before federal judges in Washington have spent years observing conditions and discussing detainee treatment with their clients. Many of them are openly critical of the Walsh report.
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."
"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.