Inspector General Glenn Fine released a 43 page report today on the mistreatment of prisoners arrested after 9/11 and held at a federal jail in Brooklyn. He recommended disciplinary action be taken against ten prison employees:

Foreigners held at a federal prison in Brooklyn after the Sept. 11, 2001 attacks suffered verbal and physical abuse, with officers slamming them against the wall and twisting their arms and hands, the U.S. Justice Department's inspector general said on Thursday. Inspector General Glenn Fine said in a 47-page report that officers also stepped on the leg-restraint chains of the detainees and punished them by keeping them restrained for long periods of time.

Videotapes showed that prison staff members slammed and pressed detainees against the wall by their heads or necks. The officers denied that it ever occurred, the report said. Videotapes also confirmed that officers placed detainees against an American flag T-shirt with the phrase "These colors don't run" on it, which was taped to the wall in the area where detainees first arrived, according to the report.

The Bush Administration took it on the chin in two rulings today--the Jose Padilla case described in the post below, and in the 9th Circuit where the Court ruled terror suspects must be provided lawyers:

The San Francisco appeals court, ruling Thursday on a petition from a relative of a Libyan the U.S. military captured in Afghanistan, said the Bush administration's indefinite detention of the men runs contrary to American ideals.

"Even in times of national emergency - indeed, particularly in such times - it is the obligation of the Judicial Branch to ensure the preservation of our constitutional values and to prevent the Executive Branch from running roughshod over the rights of citizens and aliens alike," Judge Stephen Reinhardt wrote for the majority.

"We cannot simply accept the government's position," Reinhardt continued, "that the Executive Branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included, on territory under the sole jurisdiction and control of the United States, without permitting such prisoners recourse of any kind to any judicial forum, or even access to counsel, regardless of the length or manner of their confinement."

The Australian lawyer for Guantanamo detainee David Hicks is the first civilian to visit one of the prisoners. He was there this week, and describes it as a "physical and moral black hole."

Detained U.S. citizen Jose Padilla will not be allowed to meet with his lawyer any time soon. Unlike Yaser Hamdi, whom the Adminstration finally allowed to meet with counsel last week, senior Government officials say Padilla is talking and providing valuable information and they're not about to let a lawyer interefere with that.

Senators John McCain, Maria Cantwell and Lindsay Graham visited Guantanamo this week. Their conclusion, set out in a letter to Rumsfeld: Try them or free them.

[McCain] said in an interview that he believed the continued detention of the prisoners violated basic human rights precepts. "They may not have any rights under the Geneva Conventions as far as I'm concerned," said the senator, an Arizona Republican, "but they have rights under various human rights declarations. And one of them is the right not to be detained indefinitely."

McCain also said:

....a senior administration official told him before the trip that the military has been unable to develop cases against as many as a third of the detainees and that they will have to be released..... [McCain] "blamed bureaucratic gridlock for the pace of administration decision making."

So far all of the detainees were arrested in Afganistan and all are male. But...the first female prisoner is set to arrive this week.

The three 13 to 15 year olds we've heard about are still there:

Three of the detainees are aged 13 to 15 who were "kidnapped into" a terrorist organization and treated brutally, Graham said. He said they are slated for discharge early next year into the custody of United Nations officials who have organized a special program for child combatants.

The U.S. says there are three criteria for a prisoner's release:

He must be judged to pose no threat to the United States, to be incapable of providing further intelligence information and to have been uninvolved in criminal activity.

While 88 have been released to date, no more releases are currently scheduled. Details about the 88 (and the 20 new arrivals who replaced some of them) are here.

Update: Thanks to an astute commenter, it appears John McCain and Lindsay Graham were incorrect in their statement to the Washington Post that all of the detainees at Guantanamo are from Afganistan. At least six were kidnapped from a Sarajevo prison by Bosnian police, handed over to the U.S. and brought there after the Bosnian Supreme Court had ordered them released.

Deborah Perlstein directs the U.S. Law and Security Program for the Lawyers Committee for Human Rights, and is editor of "Assessing the New Normal," a book on liberty and security in the United States since the Sept. 11 attacks. She has an excellent commentary today in the International Herald Tribune, Detained at the Whim of the President. She correctly observes that we shouldn't be fooled by the Administration's recent release of some of the Guantanamo detainees--or its decision to allow Yaser Hamdi limited access to counsel. While these are welcome measures, they are part of a "broader strategy" aimed at keeping the Supreme Court off the Administration's back so it can continue its secret and arbitrary policies on enemy combatants.

These steps are welcome. But they should be understood as part of a broader strategy. The announcement on Guantánamo comes just weeks after the Supreme Court decided to review a lower court holding that the federal courts had no jurisdiction to evaluate the legality of the Guantánamo detentions. And the decision to allow Hamdi access to a lawyer was announced on the day final briefs were due to the Supreme Court, which is now deciding whether to take the case. It is difficult to see the timing as coincidental. For the past two years, the Bush administration - far more so than previous "wartime" executives - has been very effective at keeping the courts out of the business of checking executive power.

In the two years since the Sept. 11 attacks, the administration has established a set of extra-legal structures designed to bypass the federal judiciary. It has maintained that those detained by the United States outside U.S. borders - at Guantánamo and elsewhere - are beyond the jurisdictional reach of the U.S. courts altogether. Individuals subject to military commission proceedings - which two years after their announced creation have yet to begin - are to have their fate decided by military personnel who report only to the president.

Canadian Maher Arar describes his torture at the hands of Syrians after being deported there by the U.S. following his seizure at JFK while changing planes in Delivered Into Hell by U.S. War on Terror in today's LA Times. It's a must read. It begins:

I recently spent 10 1/2 months in a grave-sized cell in Syria, unsure why I was there, unsure how to get out. Fear paralyzed my wits when I needed them most. I was beaten and I was tortured and I was constantly scared. Every day I worried that I would never be released, that I would disappear into that concrete grave forever.

Why was I being held? I still don't really know. I am not a terrorist. I am not a member of Al Qaeda. I am a Syrian-born Canadian. A father and a husband. A telecommunications engineer. I have never been in trouble with the police and have always been a good citizen.

My ordeal began on the afternoon of Sept. 26, 2002, when my flight back from a family vacation in Tunisia stopped over in New York and American immigration officials pulled me aside to answer a few questions.

[link via Arthur at Light of Reason]

A new special report in the Guardian, People the law forgot, begins this week:

Images of Camp Delta's orange-jumpsuited, manacled detainees have provoked international outrage. But the real horror they face isn't physical hardship, it is the threat of infinite confinement, without trial or access to legal representation. James Meek has spent the past month talking to former inmates and some of those involved in operating the Pentagon's Kafkaesque justice system. He has built an unprecedented picture of life on the base, which we present in this special issue.

One story told is that of Mohammad, a 23 year old baker who tried to commit suicide several times:

But his attempts at self-harm at Guantanamo began after he was confined, without explanation, in a sealed punishment cell for a month - not, it seems, because he had broken camp rules, but because the American authorities had nowhere else to put him while they were finishing new facilities.

In a surprise about-face, the Pentagon today announced that it will allow Yaser Hamdi to consult with a lawyer.

Hamdi is a U.S. citizen being held as an enemy combatant in a military brig in South Carolina. No criminal charges have been brought against him. The Government has refused to let him see a lawyer and the Supreme Court is considering whether to hear his case.

The Pentagon, in reversing course, says it will allow him to see either Frank Dunham, who has been appointed by the federal court in Virginia, a military lawyer or a private lawyer.

Why the change of heart? The Pentagon says it has finished interrogating him and cites his U.S. citizenship. Well, the latter hasn't mattered to the government for the past year and a half, so we don't buy that one. We think the Administration sees the handwriting on the wall, and rather than risk the loss of face an adverse Supreme Court ruling will bring so close to election time, is trying to cut its anticipated losses.

The DoD press release is here. It sets forth the following policy:

DoD policy is that it will permit access to counsel by an enemy combatant who is a U. S. citizen and who is detained by DoD in the United States after DoD has determined that such access will not compromise the national security of the U. S.; and after DoD has completed intelligence collection from that enemy combatant or after DoD has determined that such access will not interfere with intelligence collection from that enemy combatant.

Time reports on the interrogation techniques being used on the detainees at Guantanamo:

Every week close to half the detainees are brought in for sessions that may last anywhere from one to 16 hours. They are conducted by any of the 40 four-person "tiger" teams -- two interrogators, a linguist and an analyst. The commanders have concluded that interrogators should be young, maybe mid-20s, fairly new to the service. "Intelligence gathering is a young person's job," says Miller. "They're inventive and thoughtful." The idea is to build rapport with the detainees and come at them again and again, using new leads from intelligence gathered at Gitmo or elsewhere. "We got five times as much intelligence (from the detainees) last month as in January '03," says Miller, which, depending on whom you talk to, means that either the interrogators are getting better or the inmates more willing to say anything.

As Time points out:

If you are a government hungry for clues about the enemies' plans, one problem with the Geneva Convention governing treatment of traditional prisoners of war is that it includes strict rules limiting interrogation. So these detainees are called "enemy combatants," and there is no field manual outlining the rules for handling them. Inmates arrive with no knowledge of how long they will stay, facing the possibility of trial by a military tribunal whose procedures have yet to be tested, on charges that have yet to be revealed and that carry sentences that may depend on not just what crimes they committed but what country they are from.

[comments now closed]

We're pleased to learn that the U.S. plans to release 140 detainees from Guantanamo. On the other hand, we're outraged by this:

According to Time, activities leading toward release of the 140 prisoners have accelerated since the Supreme Court agreed to hear the case. It said U.S. officials had concluded some detainees were kidnapped for reward money offered for al Qaeda and Taliban fighters. (our emphasis)

It took the U.S. over two years to figure out that up to 20% of these detainees were total innocents? During which time they were kept in cages without access to families or lawyers?

And this isn't much better.

Slated for release were "the easiest 20 percent" of detainees, a military official told the magazine. It did not identify its source, who said the military was waiting for "a politically propitious time to release them." (our emphasis)

They should have been let go the minute it was determined they were not connected to Al Qaeda or terrorism. Maybe these officials should stand in their shoes--and cages--for a while.

The Time Magazine report is called Inside the Wire.

Security breaches. Suicidal detainees. A legal challenge heading to the Supreme Court. Welcome to Guantanamo.

Viet Dinh is a law professor and former top aide to Attorney General John Ashcroft. He is largely credited with being the author or chief architect of the Patriot Act. Dinh has left the government's employ and is now expressing serious concerns about the Bush Admninistration's detention policies and treatment of enemy combatants. Specifically, Dinh says the detention of Jose Padilla is "flawed" and he predicts that the Supreme Court will rule against the Administration.

Dinh's turnabout is especially surprising because for the past two years he consistently has refuted charges that the anti-terror war is responsible for civil rights abuses of immigrants or anyone else.

Dinh isn't the only former Justice Department official jumping ship on the enemy combatant issue. So is Ashcroft's former Criminal Division Chief, Michael Chertoff, now a 3rd Circuit appellate judge, appointed by Bush (and confirmed without serious objection by the Democrats):

...Chertoff.... has said he believed the government should reconsider how it designates enemy combatants. We need to debate a long-term and sustainable architecture for the process of determining when, why and for how long someone may be detained as an enemy combatant, and what judicial review should be available," he said. Chertoff... also mentioned at a judicial conference in Philadelphia this month the need to reexamine procedures for combatants. "Inevitably, decisions of war are made with imperfect information," he said. "Perhaps the time has come to take a more universal approach."

Here is Dinh's current position on the Jose Padilla case and Bush's enemy combatant policy: