A Day of Firsts

One of the unintentional virtues of a legal system operating without clear rules is that it’s rarely dull. Today was no exception. It was yet another day of firsts.

The Military Commissions featured their very first witness – a balding and burly officer identified colorfully as “Colonel B.” The pseudonym left some seasoned Commission observers, including members of the media, scratching their heads, because Colonel B is no mystery man. He is widely known as the officer in charge of custody operations here and has given media tours under his full name – which remained emblazoned on his uniform throughout today’s proceedings.

At issue today were the conditions of confinement to which the accused, Algerian citizen Sufyan Barhoumi, has been subjected for the last month. Mr. Barhoumi, like Mr. Al Qahtani, is accused of conspiracy for his alleged participation in al Qaeda explosives training. He is missing all but one finger on his left hand — the result, he explained during a so-called “Combat Status Review Tribunal,” of an accidental landmine explosion in 1997. During that prior tribunal, he emphatically denied al Qaeda membership and insisted that he traveled to Afghanistan in 1999 to train for battle against the Russians in Chechnya.

Barhoumi’s military defense counsel, Captain Wade Faulkner, initiated today’s hearing by challenging the transfer of Barhoumi from “Camp 4” to “Camp 5,” and Colonel B was called to the stand to explain the circumstances of that transfer. Camp 4, Colonel B explained, is where most of the “highly compliant” detainees are housed. It is a medium security facility where detainees live and eat communally – “like a family picnic” – and have 10 to 14 hours of time outside the block and regular access to sports facilities. Camp 5, in contrast, is a traditional maximum security facility, where detainees are confined to their cells for all but two hours each day, and can communicate with the outside world only through a 12-inch “bean hole” in the door through which meals, mail, and other items are passed. For almost a year, until last month, Barhoumi was housed in Camp 4. Then, without warning or explanation, he was transferred to Camp 5.

Captain Faulkner wanted to know why his client was being subjected to what he reasonably considered to be punitive conditions. Colonel B – a straightforward witness taken to saying “negative” for “no” and “vo co” for “vocal command” – offered two reasons. First, he explained, the detention system was being reorganized, and he needed the space in Camp 4. This produced an exchange rich in tautology. Did Barhoumi’s presence in Camp 4, Captain Faulkner inquired, interfere with Colonel B’s reorganization plans? Yes, Colonel B replied.

The second reason for moving Barhoumi to Camp 5, according to Colonel B, was that Army regulations, as well as the Third Geneva Convention – though they had “not quite caught up with the environment” at Guantanamo – suggested that the separation of “pretrial detainees” from the general population was required. This was exactly backwards. Army regulations, consistent with the Fifth and Fourteenth Amendments, require that pretrial detainees – that is, those who have not yet been convicted of a crime – be afforded greater rights than those already convicted. Any separation from the general population is effected in order to ensure that detainees awaiting trial are not subjected to any punishment prior to adjudication of guilt or innocence.

Citation to the Geneva Conventions was even more curious, and was yet another example of the Administration’s highly selective regard for that treaty. The Geneva Conventions plainly do not support the challenged transfer of Barhoumi to Camp 5 and, if they were recognized as binding authority at Guantanamo, would require a radical transformation of the detention and prosecution procedures at the camp – something that is unlikely to occur except under federal court order.

In the afternoon, Commission observers were treated to yet another first: Barhoumi himself took the witness stand to testify about the consequences of his transfer to Camp 5. The transfer, he said, had affected him both physically and psychologically. He removed the bandage on his left hand to reveal his damaged stump. The constant air conditioning was causing him discomfort, he explained, and he was having difficulty operating the sink and toilet, which required the pressing of a button. In Camp 5, there was no other detainee to assist him with various tasks. He believed that his transfer amounted to punishment, and he had considered boycotting Commission proceedings in protest.

Captain Faulkner then formally moved the Presiding Officer to order Mr. Barhoumi returned to Camp 4, or – if the Presiding Officer believed that he lacked the authority to compel such a transfer – to halt Commission proceedings until Barhoumi was returned to Camp 4. The Presiding Officer, after taking a recess to consider the motion, denied it, holding that there was no evidence of punitive intent underlying the transfer, and that Colonel B had provided legitimate reasons for Barhoumi’s transfer to which the Commission should defer.

The ruling, delivered in legal jargon familiar to anyone who has litigated prison conditions cases, sounded very much like a legal opinion, with one exception: It cited no law. Once again, observers and participants were left in the dark as to what body of law – the Constitution, the Uniform Code of Military Justice, international law, or something else – these Presiding Officers will apply to Commission proceedings. Perhaps, in time, the Supreme Court will supply that answer.