Guantanamo Bay - Conditions and Status of Prisoners

Recently, I took the time to read all of the released, highly redacted documents from FBI interviews of detainees from Guantanamo Bay posted at ACLU site that they obtained through the Freedom of Information Act. I also read a study called Road To Abu Graihb: US Army Detainee Doctrine and Experience posted at Castle Argghh!

The FBI documents are long and sometimes difficult to put together with the redacted areas, but it was extremely interesting reading as was the Detainee Doctrine study. For the record, I read the actual FBI documents at the top of the ACLU page and did not restrain myself to the call outs indicated on the ACLU page.

Looking over the documents, I tried to maintain as much objectivity as possible. I read them as if I was researching a information and processes as I would at work to determine problems and what could be done to resolve them, if required.

Why Guantanamo Bay Treatment of Prisoners Is Important

Information, correct and accurate, is the best foundation for developing opinions, ideas and appropriate responses when necessary. It is neither helpful nor appropriate to ignore information that would otherwise challenge our ideas or opinions. Sensationalist journalism, overt propaganda from opposition forces and internal activists, as well as protectionistic instincts of the military and government institutes have led to formulation of opinions within the US and on the world theater that adversely effect the war effort (ie, War on Terror; Iraq).

Under the microscope of free information, world media and information technologies that flashes news and ideas around the world in a matter of seconds, old ideas of "operating as usual" cannot stand nor be allowed to stand. We cannot and have not been able to operate in secret or without public censure since World War II. Corrective measures, appropriate attitude and actions must be developed and adhered to more stringently than ever. This is both stressful and difficult on all military and non-military personnel involved in the effort. We must not only identify the issues, but ensure that appropriate tools and education are available to assist our military personnel in performing their duties and ensure that they are not inadvertantly exposed to danger or legal actions due to our lack of ability to understand the issues or demand change and assistance with this endeavor.

In a war of ideologies, when we wish to claim the "moral high-ground", we must expend every effort to obtain and maintain this "high-ground", as difficult and sometimes unreasonable as it may appear, even in the face of abhorent and inexplicable behavior of the enemy.

Our military personnel come from a wide swath of the American populace and represent all aspects of society from the highest educated to high school graduates, from every economic, ethnic, cultural and social background. It would seem both inappropriate and unreasonable to expect behavior above and beyond what one might find in the general populace. And yet, due to the very nature of the war and our military, its strength of force, its adherence to development and discipline within its ranks, its projection of American idealism around the world means that we must not only expect it, but demand it.

At the same time, armed with accurate information regarding this issue, we can formulate responses and defuse some of the sensationalism and propaganda put out on all fronts of the war both domestic and foreign. As Guantanamo Bay continues to be a source of sensationalism and propaganda, we must continue to confront it, understand it, ensure that appropriate and accurate information is available to the public and corrective actions, if necessary, are taken.


Review of the FBI Documents

This is what I found in the FBI documents pertaining to Prison and Staff behavior:

Normal operating procedures for detainee and staff safety

• Stripping detainees before moving them to solitary confinement (typical in all facilities as previously noted in posts; for search of contraband, weapons or to take away any items the prisoner may use to harm himself or guards)
  
• Random searches of cells for contraband (though not described as such by detainees in their deposition, the nature and actions can be easily determined). This included flipping through the pages of the detainees' Korans, also basic operational procedures in regular prisons since detainees have a tendency to hide things in books, including weapons, drugs, messages, etc.
  
• Restraining detainees: Hand, feet and belly chains whenever moved from cages or transported for interrogation; other restraints and holds in response to detainee behavior
  
• Removal of personal and comfort items for punishment due to infractions of rules
  
• Restriction of activities for punishment
  
• Restriction of food for punishment (though, not for days and not all food)
  
• Placement in medium security cell blocks for reward or removal to high security cell blocks or solitary confinement for bad behavior (see also CBS News: Guantanamo Bay
  "Officials acknowledged this week that more than 10 detainees moved to a medium-security block as a reward for useful information have been returned to high security cells in the past three months because they passed along bad information or behaved badly."

Physical and Psychological intimidation of prisoners not related to interrogation activities and generally not categorized as "abusive".

• Intimidation to include shoving or pushing, making deragatory remarks about the prisoner, his ancestry, his associations, comments about his religious beliefs or personal habits
  
• Certain intimidation techniques are used in order to insure that the control of the prison or specific situations is maintained by the guards

Physical and mental "coersion", typically upon first retaining the detainee on or near the battle field prior to transport to Guantamo either by US allies (ie, Northern Alliance) while advisers were near by or by US military personnel directly. Also occured at Guantanamo Bay. Some details are not available so determination of whether these tactics were appropriate or against any laws, regulations or treaties, may be difficult to establish.

• "Coersion": attempting to get the detainee to give up information regarding his status, who he knew, what he knew, when he knew it, etc
  
• "Physical": Shoving, punching. Typically described by the detainees as "beatings", though most of the detainees who were interviewed within specific times of their complaints showed little or no damage one would associate with "beatings", one detainee did suffer a broken orbital bone and broken teeth allegedly from being "kicked" while down (unsure whether this was "abuse" or response to detainee behavior in struggle for control).
  
• "Mental": use of female interrogators (on at least two occassions) to sexually intimidate or to unsettle the detainee; repeated questioning with rotating interrogators (actually a common practice in interrogation even by civilian authorities) to illicit information, catch the detainee in inconsistencies; sleep deprivation (though actually limited reports of this from the detainees) mostly by leaving lights on 24/7 (possibly standard procedure for security as opposed to actual attempts to cause "deprivation").

Physical Abuse: Punching and kicking; sitting on prisoners; possibly unnecessary use of force. Some instigated by the prisoners' behavior although some of it appears to be over and above necessary response to some incidents. The incidents reported were "non-linear" or "non-routine". In other words, not apparently a procedural or policy practice, but may be related to disciplinary issues with specific guards and control and command of the prison.


From my review, I cannot find nor establish anything that I would call "torture" in these reports. My expectations of "torture" would be linear or routine beatings or other physical abuse (ie, tying; hanging from hooks or cell bars by feet, hands, arms or other appendages; electric shock; mock executions; cutting; whipping; etc) for coersive or sadistic reasons. None of which appears to be the case by the reports given to the FBI.

One of the issues of attempting to establish any case of "abuse" or other activities is that these reports are all taken from the detainees and military logs or reports on the subject do not appear at the ACLU website. Thus, while some of the reports definitely seem to point towards some abusive behavior, without the guards' reports on what was occuring with that detainee at the time of the incident, it is difficult to make anything more than assumptions.

Prisoner Behavior:

Prisoner intimidation, threats or actual physical violence against another prisoner

• One statement by a prisoner indicated that the prisoner had personally asked to be removed into protective custody because he was being threatened and intimidated by his fellow cell block mates due to suspicion of cooperating with guards or interrogators against other prisoners. (something I alluded to in my previous post Associated Pinheads and Prison Life and War Effort)

Defiance, physical or psychological, of orders, during moving of detainees, etc on the part of individual detainees.

Passing messages and attempts to maintain contraband in cells (including things that could be made into weapons: pencils, pens, metal and wooden objects; all typical behavior in most prisons, but especially dangerous at Guantanamo)

Planned or attempted organized physical resistance against the guards

Planned or attempted organized psychological resistance against the guards (including threatening to go on hunger strikes; passing disinformation regarding treatment of other prisoners; passing disinformation on disrespect of religion or other social taboos; etc)

Legal Status of Detainees

From the study on detainee doctrine, some issues are clarified in regards to categorizing, retaining and releasing prisoners. In AR 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Detainees and Other Detainees, it spells out how, when, what and where the status of a detainee is made as well as what controls the treatment and condition of these prisoners:

Chapter 1, Introduction, section 1b. This regulation implements international law, both customary and codified, relating to EPW, RP, CI, and ODs which includes those persons held during military operations other than war. The principal treaties relevant to this regulation are:
(1) The 1949 Geneva Convention Relative to the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GWS).
(2) The 1949 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GWS SEA).
(3) The 1949 Geneva Convention Relative to the Treatment of Prisoners of War (GPW).
(4) The 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC), and In the event of conflicts or discrepancies between this regulation and the Geneva Conventions, the provisions of the Geneva Conventions take precedence.

"Other Detainees" include sabatuers and terrorists. While no details of individual prisoner status exists, based on released information, the detainees at Guantanmo Bay have been classified as "other detainees". Based on Army Doctrine and AR 190-8, these prisoners must be treated as EPWs under the Geneva Conventions until their status is otherwise defined by law. The detainees legal status is determined by either formal or informal tribunals (informal tribunals can consist of three military officers) and the conditions of the operations being undertaken at the time of capture. There are no timelines or restrictions (such as habeas corpus) that require immediate legal definition of the detainee when not held within the continental US or areas directly under its control and subject to jurisdiction of US federal courts (most likely why Iraq prisoners of war have not been brought to any prison camps within the US boundaries). During war or other military operations, there are no legal restrictions on how long detainees can be held, either by treaty, by the law of war, by US Constitution or military regulations.

Historically, prisoners have been held up to one year or slightly more after the cessation of war, surrender or end of operations (see WWII, some prisoners not released or repatriated until 1947).

One of the issues with the Guantanmo Bay prisoners is that, without a formal opposing government or recognized body with command structure that can make treaties or officially "surrender" and with continuing operations by "Taliban" and other combatants, the end of "operations" and the official release of detainees cannot be undertaken on any large scale or official capacity. Thus the prisoners can be held indefinitely. However, the Supreme Court in June 2004 indicated that the prisoners could not be held indefinitely without having a tribunal or charges brought against them establishing their condition or status.

While many hailed this as a triumph of law and assumed that the prisoners would have their status as EPW or other determined by US courts of law, the actual decision by the Supreme Court only indicated that habeas corpus should apply to these prisoners because they are held within US territory and that they should have access to legal counsel, be charged and brought before a tribunal to establish legal status. However, this did not mean that all of these prisoners would suddenly be flooding the courts since military tribunal are the normal standard for these activities and would suffice as tools for determining legal status (as is also written as common policy and procedures in the military manuals). Thus, tribunals have been regular and ongoing since the ruling.

As of March 2005, all detainees status have been reviewed. The original number of detainees was 640. As of this review, there were still 558 detainees. According to the review, 520 have had their legal status determined as "enemy combatants" and will remain at Guantanmo Bay while 38 will be processed and readied for release.

While reviewing the detainee statements in the FBI files regarding the conditions under which the detainees were found on the battlefield and information they gave regarding knowledge of other prisoners, the prisoners appeared to me to be of three basic categories:

1) Foreign combatants purposefully and of their own will on the field to do battle with the US. Ideologically opposed to US and statements which indicate that they would continue to do battle with the US if released.
2) Afghanistan citizens purposefully and of their own will on the field to do battle with the US. Ideologically opposed to US and statements which indicate that they consider themselves still at war with the US and would continue to confront the US in battle if released.
3) Afghanistan citizens who were "conscripted" by the Taliban or other forces to fill out their ranks, did engage in hostile activity or provided support to forces in opposition to the US; has no ideological opposition to the US and would consider themselves no longer in opposition or in need to do battle if released. (One such "conscript" was assigned a "post" to guard their small village that was later over run by US forces; there was no information available as to whether he had actually used his weapon against the US.)

Determining the status of these combatants has been difficult since the decisions have to be made based on interviews of the detainee and other detainees as well as reports on the conditions under which the detainees were captured. Reviewing the FBI files, some detainees were very cooperative with interrogators, others mildly so and still others were absolutely and unequivacobly uncooperative.

According to the March 29, 2005 Defense department briefing:

As you know, we do not discuss individual cases, but I can share with you some of the common features of those cases to give you a sense of their complexity. Each case is different, and each case is difficult. Even for the detainees who have been determined by our CSRTs to be no longer to be designated as enemy combatants, the files on those detainees often contain information that suggests that they could be classified as enemy combatants. There is often conflicting information that has to be sorted through very carefully by the CSRT members.

It should be emphasized that a CSRT determination that a detainee no longer meets the criteria for classification as an enemy combatant [EC] does not necessarily mean that the prior classification as EC was wrong.

For example, information obtained subsequent to the detainee's original capture can shed light not only on the circumstances of capture but also the detainee's activities before capture.

Command and Responsibility

Several organizations and attornies have brought suits against the government for the alleged abuse as indicated by the FBI reports. One aspect of this situation that seems to slip by most of the main stream reporting, is that the interviews by the FBI were conducted with military criminal investigation departments in 2002 and early 2003. Which means that allegations of abuse were made and were being investigated long before the media became involved or outside counsel was retained for the detainees by friends and family. Additionally, in March 2003, directly after these investigations, a new commander was assigned to the prison and discipline and conditions were greatly improved. Most of the allegations of mistreatment, abuse or coersion are being made based on activities that occurred before this change in leadership and updated policies and procedures.

The person responsible for reporting "suspected or alleged violations of law committed by or against military personnel or civilians" is the Army Deputy Chief of Staff for operations and plans. The "secretaries of military departments" are responsible for (AR 190-8 Military Police; Chapter 1, section 1):

(1) Develop internal policies and procedures consistent with this
regulation in support of the Department of Defense (DOD), EPW/CI and other detainee programs.
(2) Ensure that appropriate training, as required, pursuant to DOD Directive 5100.77 is provided so that the principles of the Geneva Conventions, and the rights and obligations there under, are known by members of their service.
(3) Ensure that suspected or alleged violations of the international law of war are promptly reported and investigated per DOD Directive 5100.77.
(4) Conduct a periodic review of the EPW, CI and RP Program and training to ensure compliance with the law of war.

Based on all information available, it would appear that these situations have been reported and investigated through out the establishment of Guantanamo Bay to current. Policies and procedures are under review. One of the issues that is under review:

The paper says revisions under consideration include granting prisoners more power to challenge charges against them

This is not only in consideration of their legal status as EPWs, but also charges that are brought against them while detained, such as assault on guards or prisoners, infractions against prison rules (such as having contraband in cells; passing messages; stealing and other activities that threaten the security and stability of the prison, prisoners or guards). According to military regulations (also common within civilian prisons), prisoners who break prison rules can be assigned arbitrary punishment by the prisoner commander (such as removal of personal and comfort items; removal of privileges like yard, physical or associating with other prisoners). Prisoners involved in other activities such as assaults on prisoners and guards, can be brought before a tribunal and other punishments (including solitary confinement) can and will be inflicted.

The Army Judge Advocate General will "provide advice and assistance to commanders on legal aspects of violations by EPWs, CI, RP and OD". In other words, a JAG officer will advise a EPW camp commander on whether an offense is chargeable, under what conditions and what punishments can be legally provided for based on the law of war, the Geneva Conventions and military policy or law (UMCJ). (AR 190-8; chapter 1, section 1-4)

One item that continues to be bandied about or questioned is who is ultimately responsible for the care and condition of the EPWs (which engendered calls for resignation or firing of Rumsfeld)? According to AR 190-8, chapter 1, section 1-4, responsibility for prisoners of war are directly related to:

Combat Commanders

Task Force Commanders

Joint Task Force Commanders

In direct line of reporting, once the policies and procedures are developed, issued and trained upon, all commanders are responsible for ensuring that their subordinates adhere to the rules, receive regular training and treat EPWs accordingly. Those who directly committed the acts of abuse, those in direct command and their over all commanders may be subject to article 32 hearings and possible court martial or article 15 reprimands depending on the actions and severity of the abuse. One thing that is overtly and routinely made clear is that the Geneva Conventions on the treatment of prisoners of war, supersede any orders or policies.

However, based on the noted regulations in AR 190-8, since direct responsibility was given to specific commanders in theater or in charge of the EPWs, it is highly unlikely that a Joint Chief of Staff or even the Secretary of Defense would be held accountable or charged in abuse unless direct orders were given had substantial witnesses or were written that directly countered military policy, UMCJ or Geneva Conventions. (As my brother says, if the order isn't in writing, it never happened; therefore, it is the responsibility of subordinate commanders to know and ensure adherence to all policies, military codes and Conventions)

This is why, in the case of Abu Graihb, despite allegations by Gen Karpinsky (now retired Colonel Karpinsky) and others that she was the "scapegoat", she was suspended and charges were considered against her. As a commander of Military Police, she would have been (or should have been) very familiar with the policies set out in AR 190-8 and probably would have had the manual (or several copies) within her command. In which case, ignorance of the situation was no excuse as it was also her repsonsibility to regularly review the conditions, train and control her personnel.

Further discussions on the military doctrine and Abu Graihb to follow at a later date.

Summary of findings:


As of yet, from a layman's perspective, I have not found "torture" in the statements of the detainees. There are policies, laws and treaties which regulate treatment of EPWs. ALL military personnel receive some instruction on (depending on what their standard interaction with EPWs would be) how to treat EPWs. Military Police manuals actually refer to specifics and give copies or directions to the necessary documents outside of the manual that references these items.

There is no law or policy that prevents the interrogation of prisoners. There are laws, regulations and treaties which establishes the limits of information that an EPW must give as well as limits to "coersion" for obtaining such statements. However, certain aspects of the Geneva Convention may not apply to prisoners classified as "Other Detainee". This issue continues to be an area of contention between the International Red Cross, which would apply the strictest interpretation and considers the detainees to be "prisoners of war", thus given full rights and obligations under the convetions and the United States, which considers the detainees to be "sabatuers" which, even under the conventions, do not receive the same treatment as uniformed combatants or legitimate "civilian militia" in defense of their country.

It is possible, if not probable, that some techniques used during interrogation are "coercive" in nature and cross even the minimal standards for EPW treatment. Again, based on detainee reviews, this does not apear to be "standard operating procedure" as the reports of these tactics are limited.

It is possible, if not probable, that some techiniques did not cross the line, but, civilian idoelogy on what it should look like, based on movies, books or other influences, cannot or does not relate to best demonstrated and legally upheld practices that even occur in civilian interrogations by police.

Prisoner abuse does not appear to be part of "policy".

Physical violence was perpetrated on the prisoners, though whether this was solely "unprovoked abuse" or appropriate reaction to prisoner behavior cannot be well established or substantiated by the FBI documents alone.

Investigations were well underway before the media, legal or activist groups became involved.

The military did take action against guards that were accused and found guilty of such abuse.

Change in command of the prison was immediately made after investigations ensued and allegations could be substantiated.

Policies were reviewed and updated based on information found in the investigation.

Some allegations of "abuse" appear to be related to safety precautions and standard operating procedures that are common in most US civilian prisons. That includes some issues regarding the treatment of the Koran by guards.

Some allegations of "abuse" were rumors and disinformation spread by detainees. That includes "physical" abuse, coercive techniques during interrogation, and disrespect of the Koran.

Detainees at Guantanamo have behaved as many prisoners in civilian prisons. Including violence against guards and other prisoners; disruptive behavior; stealing; hiding contraband; making false statements in attempts to get better treatment or spread disinformation; used rumors and other devices to motivate other detainees to take action; etc.

In short, torture and wide spread, routine or policy driven abuse does not appear to exist. Instances of abuse were investigated and charges preferred when necessary and substantiated. However, while rules, laws and policies have been reviewed and more stringently enforced in Guantanamo bay, additional training and review should be given to troops in the field regarding treatment of detainees.

Stay tuned for continuing review of documentation, regulations and statements by prisoners in Guantanamo Bay. With specifics on detainee statements and how they relate to historical problems with interrogation, control of prisoners and discipline within EPW camps since Korea.

Reference Materials Updated 9:02 AM:

FBI Documents: Guantanamo Bay Detainee statements
Detainee Doctrine and Experience
AR 190-8: Enemy Prisoners of War, Retained Personnel, Civilian Detainees and Other Detainees
Guards Charged and Disciplined for Abusive Behavior
Global Security: Guantanamo Bay Reference Page
Living Conditions at Guantanamo Bay
No "Abuse" by Medical Personnel; Seven Instances of NOT reporting abuse being investigated
Church Report on Abuse: Per Request of Department of Defense
Field Manual 34-52: Interrogation Procedures
Freedom of Information Act
FBI Reading Room