Bullets in furtherance of meeting of 4 February 2009

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Bullets in furtherance of meeting of 4 February 2009  (2009) 
by Peter Masciola
From http://www.defenselink.mil/pubs/pdfs/App11.pdf

Drafted in response to Executive Order 13492

4 February 2009
MEMORANDUM
From:
COL Peter Masciola, JA, USAF/ANGUS
Office of Military Commissions
Chief Military Defense Counsel
To:
VADM MacDonald, JAGC, USN
Subj:
Bullets in furtherance of meeting of 4 February 2009
1.

Thank you for providing the time to meet with CAPTAIN Prince and I this morning to discuss our concerns with maintaining the viability of the Defense process during the period of the stand-down and thereafter.

2.

As you requested, we are providing herein some bullets (along with very brief explanation) of some ofthe major issues identified by defense counsel in this office. As I am sure you are aware, defense counsel have innumerable concerns about logistics, conditions of confinement of detainees and the Military Commissions process. Nevertheless, we have tried to summarize the most emergent of their concerns for your review and for you to forward to ADM Walsh who is currently engaged in the assessment of operations at the U.S. detention center at Guantanamo Bay, Cuba.

3.

Accordingly, the cited issues include:

  • Conditions of confinement (generally): 90 percent of detainees are housed in punitive conditions of confinement without having been afforded due process or even a justification for the imposition of such punitive conditions. Only a small number of detainees are afforded conditions of confinement that would comply with Geneva and Article 13, UCMJ. Barring disciplinary segregation or pretrial detention, the vast majority of the detainees should be housed in available communal living facilities located within Camp Delta.
  • Transportation of detainees to/from attorney meetings, court hearings, etc: Detainees are transported in a manner that is extremely arduous and, reportedly for security reasons, are designed to disorient the detainee. Such transportation is similar to conditions suffered by detainees during periods of interrogation and during periods of cruel, inhumane or degrading treatment at some point during their confinement. Such arduous transportation conditions is a disincentive for detainees to meet with attorneys and further detail cannot be provided in this communication as "conditions of confinement" are deemed classified.
  • Detainees' visitations: In meetings with counsel, the conditions imposed upon detainees (both HVDs and others) are well beyond what counsel have observed in any military, state or federal systems. (Counsel note that absent some demonstration that the individual has recently engaged in direct violence against a specific person, they have never observed conditions such as are currently employed during counsel meetings.) The restraints employed not only disturb detainees ifnot applied properly, they also humiliate and degrade detainees even further, after the transportation methods employed to get to the visitation site. Further details cannot be provided herein as conditions of confinement are currently deemed classified.
  • Prolonged use of solitary confinement: The High Value Detainees have been held in prolonged solitary confinement. As is noted above, the specific conditions of confinement are classified and not subject to routine inspection by defense counsel.
  • Inability of counsel to inspect conditions under which clients are confined: Counsel are unable to inspect or to routinely review conditions of confinement of their clients. They are thus unable to investigate client complaints to determine whether such complains are legitimate; they are similarly unable to determine whether responses from JTF are legitimate. It should not be taken as an insult to JTF to assert that defense attorneys should not be required to accept representations of the detaining authority on good faith alone. To date, only one HVD attorney team has been permitted to inspect Camp Platinum; attorneys from such team assert that conditions of confinement may well be in violation of the law and current directives of the EO.
  • Access to Medical and Mental Health Records: Neither counsel nor the accused are permitted access to their medical or mental health records, unless they make a request through the prosecutor. The records are screened by the prosecution before they are provided to the defense. This process only occurs once charges have been referred. Mental health records are withheld entirely and will not be released by JTFGTMO absent a court order. Again, if the case has not been referred, counsel has no recourse to obtain these records. In order to advocate and, more fundamentally, in order to relate to the client, counsel must be permitted to view a detainees mental health records and in appropriate circumstances to speak with medical personnel. Counsel act as a check on the system to insure that the detainee is receiving appropriate services and treatment. Further, counsel are often in a position to observe signs of physical or mental health problems.
  • Lack of Appropriate Mental Health Care: According to public source documents, military doctors assisted in the interrogation and questioning of detainees, particularly the "high value detainees." The only mental health services now available to these detainees are provided by uniformed personnel. Consequently, the services available may exacerbate the symptoms of mental illness particularly PTSD.
  • Special concerns regard conditions of confinement: Some numbers of detainees were transferred to Guantanamo after several years in a separate CIA program authorized to use extreme measures to control and interrogate detainees, to include extreme isolation, environmental manipulation and sensory deprivation. (This is known from published sources.) Published sources also note that others were held in US military custody at times and in locations where similarly extreme treatment was considered lawful and necessary for effective interrogation. A number of these individuals now report extreme mental or physical sensitivity to aspects of movement operations and cell conditions at Guantanamo that echo these prior experiences. These current incarceration conditions would be considered extreme even by "Supermax" standards. There currently exists no reasonable way for military or habeas counsel to address such complaints and ensure the detainee is treated humanely as required by international law -either to adequately investigate the circumstances of the treatment, to demonstrate good faith to a skeptical client, to utilize expert medical assistance to properly evaluate the detainee's mental and physical condition, or to seek remedies consistent with force protection and international legal standards for detainee treatment, whether as applied to the general population or as applied to individuals rendered particularly susceptible to pain or suffering by their previous treatment in US custody.
  • SOPs on detention operations: Detention SOPs which apparently govern detention practices will not be released to defense counsel (especially not prior to referral of charges). We have asked for them directly from GTMO/SJA, the CA, and fonnally in discovery. Beyond frustrating, this uncertainty seriously undermines counsel's credibility with the client, as counsel cannot properly infonn the client as to what are the rules governing his day to day existence.
  • Communication Challenges: There continue to be significant restrictions placed upon a detainee's ability to communicate with the outside world (i.e. family, his lawyers, etc.). Despite the ICRC's access to the camps, most detainees are unable to make any contact with persons that does not take months and, most importantly, is not screened and redacted by the Document Exploitation Teams at JTF-GTMO.
  • Crushing use of classification authority: Current Protective Orders, insisted on by the government, not only provide that everything that a detainee says is presumptively classified, but that his conditions ofconfinement are classified. Defense Counsel acknowledge that certain things are properly classified, but assert that current practice places an undue burden on the Defense. (For example, the Protective Order prevents counsel from providing any details in this communication of concerns regarding conditions of confinement and transportation ofdetainees.) This issue is exacerbated by the fact that there currently is no privileges or classification review team to allow the defense to accurately assess the classification level ofa given piece of information or documentation while still maintaining such information as privileged, work product or attorney-client.
  • Forced cell extractions: Counsel was advised in December 2008 that all detainees would be subject to a FCE to attend hearings. Counsel has concerns that this order is unlawful when one considers the language of R.M.C. 804(b). Moreover, since defense counsel are not permitted to meet with the client to discuss a refusal to attend a hearing prior to the FCE to assess (and communicate the reasons for the refusal to the Commission) and/or to encourage the client to attend the hearing so as to avoid.
  • Interference with Attorney/client relationship: The net result of the numerous issues cited above is an extreme interference with the attorney client relationship. It is the defense counsel's job to work with the client and any impediment to the building of this relationship should be considered a priority that drives the ship, not something that will be accommodated only after other concerns are first met.
  • Lack of a Rehabilitation Program: To the best knowledge of counsel, there is no transitional or effective reintegration program in use at GTMO. After prolonged detention, particularly without charges, JTF-GTMO should provide detainees with some basic skills to ensure that they will make a positive adjustment to their release. Some of the detainees have been confined for close to seven years. It is difficult to imagine how they will reintegrate into society without some amount of assistance. This is especially relevant for those detainees who were juveniles at the time of their apprehension and initial detention are entitled under international law (The Optional Protocol on the Involvement of Children in Armed Conflict) to rehabilitation support and other living conditions which will prepare them for reintegration into society. The requirement to provide rehabilitation and reintegration services to juveniles does not cease upon attaining majority.
  • Translation of Commission filings: There is a glaring problem that is ongoing due to a need for a full time translator who is not in any way associated with prosecution to translate court filings, rulings, and orders into Arabic, etc. This is currently being handled by the prosecution team but they have on a number ofoccasions neglected to carry out this responsibility or failed to complete in a timely manner. Translation services that are not associated with the prosecution are the standard procedure in non-military courts.
  • Travel: Current travel accomplished by C-130s out of Andrews AFB. Round trip flight times have resulted in the loss to 2 duty days due to 2 hours show time prior to flight, approximately 5 Y:z hours in the air, and I hour ferry ride upon landing. The result is three day commitment for a one client visit. In the past, faster planes have allowed for afternoon visits on the day ofarrival and possibly morning visits the day of departure (flight time depending).
  • Living Conditions: For short term visits to the island, the housing is sufficient. For long term work on the island, the decision to require Commissions personnel to stay in tents or Cuzcos did not take into account the need to work while in quarters. There is no reasonable internet access in quarters areas and the quarters are far too small to serve as a work space. This is totally unacceptable for attorneys engaged in complex litigation.
  • Availability of Meeting Times: As described, travel to GTMO remains difficult. The most reliable means of travel is a Tuesday-Thursday flight, which is now open to habeas counsel as well. Although there are a limited number ofvisitation slots for all detainees, the number of slots available for high value detainee visits currently stands at 4 (there are 16 detainees currently designated as HVDs). Counsel must compete with each other for these slots. As a professional courtesy, counsel agreed to give up meeting times so that all can be accommodated. Limitations on meeting time/space substantially impair the ability of counsel to build attorney-client relationship and to overcome the distrust that is inherent in representation of detainees by attorneys (civilian or military) ofthe country that is detaining them.
  • Interpreter Services: Interpreters are presently provided through a contractor. They typically either have full time jobs which they are juggling against their Commissions work or else are in a search for full-time work and loathe to commit to extensive case involvement. While counsel are technically free to identify outside interpreters for inclusion in the contractor's pool, the requirements ofUS citizenship and security clearances render this option virtually meaningless. Furthermore, some interpreters have expressed reservations about affiliating with "suspected terrorists" in view of feared adverse impacts on their clearances or on future employment with the US government. This structure creates obvious conflicts of interest and often leads to juggling of interpreters between client visits. One solution is to provide funding for full-time salaried interpreters designated for service within OMC-D, much as has been done with tech support staff, investigators, intel analysts, etc.
4.

We can easily provide additional detailed information concerning these issues, including meetings with individual OMC-D counsel and production ofrelevant defense court filings. We will do so expeditiously if you or ADM Walsh so desire. Lt Col Jeffrey Colwell and Maj David Frakt from this office are on the ground at GTMO, should ADM Walsh or his legal counsel wish to contact them directly. Should you have any questions concerning any matters concerned herein. please do hesitate to contact me at my office (202) 761-0645 or cell (703) 409-2871 or CAPTAIN Prince at his office (703) 588-0426 or cell (703) 717-3791.

P. R. Masciola