{"id":239984,"date":"2023-07-24T12:00:58","date_gmt":"2023-07-24T11:00:58","guid":{"rendered":"https:\/\/www.transcend.org\/tms\/?p=239984"},"modified":"2023-07-23T09:36:28","modified_gmt":"2023-07-23T08:36:28","slug":"takeaways-from-the-un-special-rapporteur-report-on-guantanamo","status":"publish","type":"post","link":"https:\/\/www.transcend.org\/tms\/2023\/07\/takeaways-from-the-un-special-rapporteur-report-on-guantanamo\/","title":{"rendered":"Takeaways from the UN Special Rapporteur Report on Guantanamo"},"content":{"rendered":"

29 Jun 2023 – <\/em>On June 26–the International Day in Support of Victims of Torture–the United Nations Special Rapporteur on Human Rights and Counter-Terrorism, released the final report<\/a> of her technical visit to the United States, which included unprecedented access to the Guantanamo detention facility. The report covers a lot of ground \u2013 the rights of victims of terrorism, the rights of detainees at Guant\u00e1namo, and the rights of former detainees \u2013 and does so in a fair amount of detail. The Special Rapporteur, Fionnuala N\u00ed Aol\u00e1in, simultaneously posted the one-page U.S. response<\/a>.<\/p>\n

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US Army Military Police escort a detainee to his cell at Naval Base Guantanamo Bay
[Credit: Shane T. McCoy\/US Marshals Service]<\/p><\/div>\n

Here are a few notable takeaways from the report:<\/p>\n

Where Credit Is Due, and Where It Isn\u2019t<\/strong><\/h3>\n

The Special Rapporteur\u2019s report opens by lauding the United States for facilitating her visit to Guantanamo \u2013 the first of its kind by any of the U.N. Special Procedures \u2013 and rightly so. As I have written<\/a> previously:<\/p>\n

\u201cBreaking with prior administrations on this issue [of access to Guantanamo] reinforces not only the Biden administration\u2019s commitment to closing Guantanamo, but also its respect for the basic principle that\u00a0all\u00a0<\/em>countries must afford U.N. human rights officials independent and meaningful access to\u00a0all<\/em>\u00a0sites of detention, wherever they may be. It is notable that the United States can now, for the first time, credibly state that it has nothing to fear from such a visit. The Biden administration has strengthened the United States\u2019 hand, and that of other democracies, vis-\u00e0-vis authoritarian regimes \u2013 like China \u2013 that have denied access to places of detention on purported security grounds.\u201d<\/p><\/blockquote>\n

In the Rapporteur\u2019s words:<\/p>\n

\u201cThe U.S. Government, which has a standing invitation to all thematic Special Procedures mechanisms, understood that this visit would put its detention practices, repatriation and resettlement efforts, and treatment of victims and family members of the 9\/11 terrorist attacks under close scrutiny, and it is a sign of a commitment to international law that the visit occurred, was highly cooperative, constructive, and engaged at all levels of government, and is reported upon.\u201d<\/p><\/blockquote>\n

The U.S. response echoes these sentiments, thanks N\u00ed Aol\u00e1in for acknowledging the significance of the access she was given, and commits to carefully reviewing her recommendations.<\/p>\n

Unless the response was then going to engage genuinely with the substance of the report (it does not), the administration probably should have just stopped there. Instead, across two sentences \u2013 seemingly intended to support the U.S. \u201ccommit[ment] to providing safe and humane treatment for detainees at Guantanamo, in full accordance with international and domestic U.S. law\u201d \u2013 the response makes a series of conclusory statements, nearly all of which are deeply misleading in some respect.<\/p>\n

The U.S. government writes, for example:<\/p>\n

\u201c[Detainees] receive specialized medical and psychiatric care\u2026\u201d<\/em> Yes, there are some detainees who have received some care than can be characterized as \u201cspecialized<\/em>.\u201d But that says nothing about the mountain of evidence that medical care at Guantanamo is deficient in myriad ways (including by lacking torture rehabilitation). That evidence comes from independent medical experts<\/a>, former Guantanamo commanders<\/a>, non-governmental organizations<\/a>, Guantanamo\u2019s first chief medical officer<\/a>, U.N. special procedures,<\/a> detainees\u2019 own medical records<\/a>, journalists, U.S. federal courts<\/a>, a former SOUTHCOM commander<\/a>, and \u2013 in an exceedingly rare recent public statement<\/a> \u2013 the International Committee of the Red Cross.<\/p>\n

Even Congress, which almost never legislates on Guantanamo other than to further entrench it, is expressing concern: the version of this year\u2019s defense authorization bill<\/a> recently passed out of the Senate Armed Services Committee (by a 24-1 vote) \u201cdirects a briefing on the progress of the Department of Defense in contingency planning for addressing the anticipated medical contingencies for the aging population at the Guantanamo detention facility.\u201d<\/p>\n

U.S. domestic law<\/a> requires the government to provide detainees with \u201cevaluation and treatment that is accepted by medical experts and reflected in peer-reviewed medical literature as the appropriate medical approach for a condition, symptoms, illness, or disease and that is widely used by healthcare professionals.\u201d In case<\/a>, after case<\/a>, after case<\/a>, it is clear that the Defense Department isn\u2019t meeting that standard of care.<\/p>\n

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The United States also states, \u201c[Detainees] [c]ommunicate regularly with family members.\u201d Again, yes, detainees communicate with family members. Whether communication is \u201cregular\u201d \u2013 and for whom, since access is different for different categories of detainees \u2013 might turn on one\u2019s definition of the word. The Special Rapporteur acknowledges important improvements in access to family communications, including recently. But, as she also explains, communication is one thing, meaningful <\/em>communication another. To be sure, the administration\u2019s statement reads quite differently with some context. As N\u00ed Aol\u00e1in\u2019s report explains:<\/p>\n

\u201cDetainees, counsel, and military personnel identified several ongoing obstacles to meaningful family communication, including the lack of confidentiality of family calls, calls that are not in real-time, poor or often last-minute communication with regard to call cancellations and delays, and limited frequency of calls at odds with the actual numbers of remaining detainees\u2026[,] issues concerning the vetting process for family members to be added to the call list, as well as potential limitations placed on \u201cextended\u201d family participation in calls.\u201c<\/u><\/p><\/blockquote>\n

And the U.S. government writes, \u201cThe military commission process continues for those detainees subject to criminal prosecution.\u201d<\/em> This statement is astonishing, not because it\u2019s wrong, but because it concludes a paragraph describing progress the administration has made toward closing<\/em> Guantanamo, when the commissions\u2019 cockroach-like ability to drag on is one of the biggest obstacles <\/em>to closure. Throughout almost 15 years of working on Guantanamo, I have never seen anything more universally accepted than the belief that the military commissions have failed. I\u2019m confident that most senior administration officials with a hand in Guantanamo policy feel the same. It should be equally clear at this point that plea agreements<\/a> are the only way out<\/a>. Why? Because, as the Special Rapporteur said during her press conference<\/a>\u2026<\/p>\n

\u201cThe cost of torture is the annihilation of the rights of victims of terrorism.\u201d<\/strong><\/p><\/blockquote>\n

It\u2019s no secret that torture is the rot at the core of the military commissions. N\u00ed Aol\u00e1in\u2019s press conference<\/a> clearly and powerfully captures what that means for 9\/11 victims and family members. Here\u2019s how she put it in her report:<\/p>\n

\u201cThe SR unequivocally states that the systematic rendition and torture at multiple (including black) sites and thereafter at Guantanamo Bay, Cuba\u2014with the entrenched legal and policy practices of occluding and protecting those who ordered, perpetrated, facilitated, supervised, or concealed torture\u2014comprise the single most significant barrier to fulfilling victims\u2019 rights to justice and accountability. In her view, the use of torture was a betrayal of the rights of victims.<\/p>\n

“Systematic torture cannot be hidden from all of those whose human rights are impacted by its use. The practice of systematic torture goes to the heart of the now available justice for victims. It must be recognized as such.\u201d<\/p><\/blockquote>\n

This is why there have been so many voices who have called for plea agreements to end the commissions \u2013 from former Bush administration Solicitor General<\/a> Ted Olson<\/a>, to Senator Dick Durbin<\/a> (D-Illinois), to both prosecutors and defense counsel in the 9\/11 case (whose efforts to negotiate a plea have been stymied<\/a> by senior administration officials\u2019 inertia), to 14 children and grandchildren<\/a> of mothers and grandparents killed on 9\/11. Not because pleas are the solution that any of them may have wanted in the immediate aftermath of 9\/11, but because, 21 years later, they are the only \u201cnow available justice.\u201d\u00a0<\/strong><\/p>\n

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Fionnuala D. N\u00ed Aol\u00e1in OHCHR<\/p><\/div>\n

Arbitrariness \u201cPervades\u201d Guant\u00e1namo Detention Infrastructure<\/strong>\u00a0<\/strong><\/h3>\n

The Special Rapporteur says \u201carbitrariness pervades the entirety of the Guant\u00e1namo detention infrastructure.\u201d She also states that the U.S. government \u201cis intimately aware of the depth and severity of many detainees\u2019 current physical and psychological harms.\u201d I\u2019m not so sure. Rather, in my experience engaging with a host of government officials over many years, part of the disconnect between the government\u2019s longstanding position that it provides \u201csafe and humane treatment for detainees at Guantanamo\u201d and many stakeholders\u2019 claim to the contrary (mine included) is that too few in the executive branch (or Congress for that matter) appreciate the wide-ranging effects of two decades of untreated torture and related trauma.<\/p>\n

One of torture\u2019s often most psychologically damaging features is that the victim can never be certain when it\u2019s coming, what will happen, how long it will last, or who the perpetrators will be. The CIA torture program embraced unpredictability as a means to make victims feel helpless and hopeless. That is why effective torture rehabilitation features giving survivors a sense of control over key features of their rehabilitation context, content, and process; providing them trusted human connections that are consistently available, including regular, predictable access to treatment providers and other trustworthy sources of support; and generally trying to make them feel safe.<\/p>\n

What\u2019s more, as the Special Rapporteur observed, for many survivors \u2013 especially those who have not received any rehabilitative care \u2013 \u201cthe dividing line between the past and the present is exceptionally thin\u2014for some non-existent\u2014and their past experiences of torture live with them in the present, without any obvious end in sight\u2026\u201d<\/p>\n

The more survivors\u2019 lives are dictated by arbitrary, ever-changing forces beyond their control, the more harm they\u2019re likely to experience. And that\u2019s Guantanamo: as the Special Rapporteur found, \u201carbitrariness pervades the entirety of the Guant\u00e1namo detention infrastructure\u201d\u2014from the substance and implementation of Standard Operating Procedures (when they\u2019re even available) that govern all aspects of life; to counsel access; to the rapidly rotating, and generally poorly trained, guard force, some of whom worked previously at Guantanamo at times when \u201csystematic torture, cruel, inhuman, or degrading treatment were sustained;\u201d to also rapidly rotating medical providers; to family access; to the \u201crange of comfort items and even medicines\u201d that certain lawyers are allowed to bring certain clients; and more.<\/p>\n

The U.S. government might believe that it is treating the men safely and humanely, but given their history of torture and lack of rehabilitation, that isn\u2019t what many of them are experiencing.\u00a0<\/strong><\/p>\n

The Price All Families Have Paid<\/strong>\u00a0<\/strong><\/h3>\n

The Special Rapporteur\u2019s descriptions of her visits with families \u2013 both 9\/11 victims\u2019 and detainees\u2019 \u2013 were the hardest parts of her report for me to read, and I was struck by their similarly. For example, all<\/em> families have been exposed to, and in many cases are suffering from:<\/p>\n