End 22 Years Of Injustice

After First Ever Guantánamo Visit, U.N. Rapporteur Finds Dehumanized, Traumatized Men Subjected to Cruel, Inhuman and Degrading Treatment That May Rise to the Level of Torture

Fionnuala Ní Aoláin, the U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, and her team, on their visit to Guantánamo in February this year, the first by a U.N. Special Rapporteur since the prison opened in January 2002.

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By Andy Worthington, June 29, 2023

On Monday June 26, 7,837 days since the prison at Guantánamo Bay opened, and on the 25th anniversary of the establishment of the U.N. International Day in Support of Victims of Torture, the Special Procedures of the U.N. Human Rights Council ("independent human rights experts with mandates to report and advise on human rights from a thematic or country-specific perspective") issued a devastatingly critical report about systemic, historic and ongoing human rights abuses at the prison, based on the first ever visit by a Special Rapporteur — Fionnuala Ní Aoláin, the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, who visited the prison in February.

At the time of her visit, just 34 men were held at the prison (a number now reduced to 30), out of the 779 men and boys who have been held by the U.S. military throughout the prison’s long history, and, as the Special Rapporteur admitted, she agreed with every "detainee or former detainee," who, "[i]n every meeting she held" with them, told her, "with great regret," that she had arrived "too late."

However, it is crucial to understand that the lateness of the visit was not through a lack of effort on the part of the U.N.; rather, it was a result of a persistent lack of cooperation by the U.S. authorities — part of a pattern of obstruction, secrecy and surveillance that prevented any U.N. visit because the authorities failed to comply with the Terms of Reference for Country Visits by Special Procedure Mandate Holders, which require "[c]onfidential and unsupervised contact with witnesses and other private persons, including persons deprived of their liberty."

Finally, the Biden administration agreed to the Terms of Reference, and the Special Rapporteur duly noted that she was allowed access "to detainees, including 'high value' and 'non-high value' detainees," in meetings which "were confidential and unsupervised." She also thanked the U.S. government for their cooperation, noting that "[f]ew countries take meaningful steps to address egregious past human rights violations or undertake action to undo the most shocking of harms," and pointed out that the U.S. government "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," adding that "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."

The Rapporteur also interviewed "military and civilian personnel, military commission personnel, and defense lawyers," as well as "victims, survivors, and families of victims of the September 11, 2001 terrorist attacks, former detainees in countries of resettlement or repatriation, and human rights and humanitarian organizations," and the 23-page report consists of three sections: Part 1, dealing with victims and survivors of the 9/11 attacks, Part 2, dealing with Guantánamo, and Part 3, dealing with the repatriation and resettlement of former prisoners. I’ll discuss Parts 1 and 2 in this article, and Part 3 in a second article to follow.

Whilst it’s important that the Rapporteur met victims’ families and survivors of the "crime against humanity" committed on September 11, 2001, and reviewed the U.S. government’s response to their needs over the last 21 years, she was also unswerving in her assertion that, although she acknowledged "the collective exhaustion and frustration with the lack of criminal accountability for 9/11," and recognized "differing views within the victim community on the legitimacy of the military commissions, the use of the death penalty, and the operation of the Guantánamo detention facility," which led to "many difficult conversations with victims and families addressing the direct consequences of the systematic practices of rendition, torture, and arbitrary detention," her unequivocal position was that "the systematic rendition and torture at multiple (including black) sites and thereafter at Guantánamo Bay, Cuba — with the entrenched legal and policy practices of occluding and protecting those who ordered, perpetrated, facilitated, supervised, or concealed torture — comprise the single most significant barrier to fulfilling victims’ rights to justice and accountability," adding that, "In her view, the use of torture was a betrayal of the rights of victims."


Torture, of course, was at the heart of the "war on terror" that the Bush administration declared after 9/11, when "hundreds of Muslim men were rendered across borders, forcibly disappeared, held in secret detention, and subject to egregious human rights violations," not only in the CIA’s "black sites," but also at Guantánamo, and the Special Rapporteur reaffirmed the finding by the U.N. Special Procedures — in 2022, drawing on a 2010 report on which I was the lead author — of "structured, discriminatory, and systematic rendition, secret detention, and torture and ill-treatment at multiple (including black) sites and at Guantánamo Bay."

In a hugely significant sentence, she "acknowledge[d] that the vast majority of the men rendered and detained there were brought without cause and had no relationship whatsoever with the events that took place on 9/11," a conclusion that has, to date, eluded the U.S. government, and may well be part of the claim, in a curt response to the report by Michele Taylor, the U.S.’s Permanent Representative at the U.N. Human Rights Council, that the Biden administration "disagrees in significant respects with many factual and legal assertions the SR has made."

Acknowledging that she had access "to previous and current detention sites, including Camp X-Ray, Iguana (now dismantled), Echo 1 and 2, Delta Camps 1 to 4, Camps 5 and 6, and Camp 7," and that "the current conditions at Camps 5 and 6 [where, respectively, all the "high value" detainees and "non-high value" detainees are held] include the requisite sleeping accommodations, sanitation, food service, recreational facilities and activities, and communal prayer under internationally accepted standards for the majority of detainees," she nevertheless found that "significant structural shortcomings remain," not only in relation to "health, family, and justice," which are all discussed in detail and analyzed below, but also through the "arbitrariness" that "pervades the entirety of the Guantánamo detention infrastructure — rendering detainees vulnerable to human rights abuse and contributing to conditions, practices, or circumstances that lead to arbitrary detention."

On this particular point, the Special Rapporteur honed in on the Standard Operating Procedures (SOPs) that "are in place to regulate every aspect of detention operations, including detainee reception and transfer, restraints, cell block searches, mess operations, religious accommodations, and medication distribution," noting that "the SOPs for Camps 5 and 6 are unavailable to the detainees or their counsel without a court order, in potential contravention of the right of persons detained and their legal counsel to know the rules which regulate their place of detention," and also noting that, although she "was informed by the U.S. Government that detainees and their counsel are regularly briefed broadly on camp rules and procedures," the reality is that "detainees, counsel, and even guard force personnel voiced significant frustration at the arbitrariness, confusion, and inconsistency that characterizes implementation of the SOPs."

With regard to several procedures, the Special Rapporteur noted that they "establish a structural deprivation and non-fulfilment of rights necessary for a humane and dignified existence and constitute at a minimum, cruel, inhuman, and degrading treatment."

The procedures in question involve, firstly, the requirement "to address detainees by their Internment Serial Number" instead of their names, which "undermines each detainee’s self-worth and dignity, particularly in the lived context of profound deprivation of liberty, communication, and relationship with the outside world," and, secondly, the restraints used whenever detainees are moved anywhere, which "are inherently degrading," and "should be prohibited and only used as a last resort, in exceptional circumstances, and in compliance with the principles of necessity and proportionality." She noted that the use of restraints "inculcates an ongoing experience of helplessness and affirms domination, producing psychological distress for many."

Thirdly, she expressed "serious concern that certain disciplinary measures like forced cell extractions and solitary confinement continue to be implemented disproportionately and over-expansively, amounting to cruel, inhuman, and degrading treatment," and, fourthly, she found the government’s "near-constant surveillance of both 'non-high value' and 'high value' detainees through visual monitoring to be excessive," amounting to "humiliating and degrading treatment, especially for those who have never been charged with a single crime."

It’s interesting to note that, although the SOPs have been revised numerous times over the years, all of the problems highlighted above have been in place since the earliest days of Guantánamo’s existence, and involve systemic dehumanization, and a hysterical perception of the potential threat posed by detainees, which was ludicrous and inhumane when it was first implemented, but is truly grotesque when continued for 21 years.

Health Care

Regarding the health care provided, the Special Rapporteur noted that "the facilities, medical personnel, and treatment available" are "adequate in providing basic health care and services," but she was "gravely concerned by the failure of the U.S. Government to provide torture rehabilitation programs," and was particularly scathing about the "specialist care and facilities" that "are not adequate to meet the complex and urgent mental and physical health issues of detainees, including permanent disabilities, traumatic brain injuries, chronic pain including headaches and chest, stomach, back, rectal, and joint pains, gastrointestinal and urinary issues, complex and untreated post-traumatic stress disorder, and other current physical and psychological manifestations of torture and rendition after 9/11, as well as the cumulative and intersectional harms arising from continued detention, deep psychological distress, deprivation of physical, social, and emotional support from family and community while living in a detention environment without trial for some and without charge for others for 21 years, hunger striking and force-feeding, self-harm and suicidal ideation, and accelerated aging."

She added that she found that "many of the detainees she met evidenced deep psychological harm and distress — including profound anxiety, helplessness, hopelessness, stress and depression, and dependency."

Complicating matters further, the Special Rapporteur noted the persistent failures in the provision of medical care for those with severe problems that cannot be addressed in the prison, making particular reference to the case of Abd al-Hadi al-Iraqi (aka Nashwan al-Tamir), who suffers from spinal stenosis, has had numerous operations, and was the subject of a damning U.N. opinion earlier this year (which I wrote about here). As she noted, his "medical history and deteriorating conditions … were allegedly disputed by medical personnel and only after legal representatives filed several emergency motions was a neurosurgeon brought in again."

The Special Rapporteur was also concerned that "examination by an independent, civilian medical professional not associated with the Government is available only in rare instances and only when directed to do so by the military commissions or courts," noting that "detainees who are involved in legal proceedings appear to have increased access to independent health care/doctors," and also noting that, despite efforts in court to secure Mixed Medical Commissions (of U.S. and non-U.S. experts) to assess certain prisoners, none have been appointed by the government.

She was particularly scathing about "the lack of full clinical independence" at the prison, because "[a]ll medical personnel responsible for detainee medical care are DoD personnel," and she "expressed her profound disquiet that the current supervisory chain of command lacks clinical independence and compromises the ability of medical personnel to fully treat and document contemporary manifestations of past torture and ill-treatment in complete independence," noting that "[e]ven the Chief Medical Officer, who is responsible for overseeing the physical and mental health care of detainees, reports to the Assistant Secretary of Defense for Health Affairs within DoD."

As she further explained, "multiple detainees expressed concern regarding the lack of trust between detainees and medical personnel," and "consistently told her of current difficulties trusting medical personnel due to past medical personnel being directly complicit in prior torture and ill-treatment and/or due to broader 'dual loyalty' concerns." She observed that, "for some detainees, amid such pervasive distrust, the mere receipt of medical and psychological care under continuing U.S. custody at Guantánamo Bay may be triggering of past torture and traumatic experiences, specifically engaging severe psychological distress and anxiety," and added, "Again, the U.S. Government’s refusal to facilitate independent care for this unique detainee population, including through Mixed Medical Commissions, raises serious concerns under relevant international law standards."

The Special Rapporteur also dealt with problems regarding prisoners’ medical records, which are not readily made available to detainees or their lawyers, and involve "arbitrariness in practice." She noted that "detainees, former detainees, and counsel expressed frustration that medical records — if provided — are often incomplete or even recomposed to omit past torture and ill-treatment," and "underscore[d] in this context the continuing obligation of the U.S. Government under the Convention against Torture to ensure full access to medical records for torture victims."

She also discussed how she "was informed by detainees, defense lawyers, and medical personnel of multiple instances in the weeks preceding her visit when counsel was not notified of significant detainee health issues, including emergency hospitalization, surgery, urgent diagnoses, and a COVID-19 outbreak, in a timely manner, rather post facto,” and also noted that, "for detainees not subject to legal proceedings, access to medical records is also inconsistent and ambiguous."

In conclusion, the Special Rapporteur found that "the foregoing conditions constitute a violation of the right to available, adequate, and acceptable health care," and "have resulted in the significant deterioration of the physical and mental health of detainees, compounding post-traumatic symptoms and other severe and persistent health consequences co-related to temporal continuities of healthcare provision at Guantánamo Bay," further explaining that "the cumulative effects of these structural deficiencies amount to, at minimum, cruel, inhuman, and degrading treatment under international law," and adding that "the U.S. Government’s failure to provide torture rehabilitation squarely contravenes its obligations under the Convention against Torture."

Right to Access to Family

One of Guantánamo’s enduring barbarities is the prisoners’ isolation from their families, because no family visits are allowed, and for many years even calls to family members were a rarity. Only letters were allowed — as a result of pressure from the International Committee of the Red Cross (ICRC), the only outside body able to visit Guantánamo — but it seems clear that not all letters were delivered, either because the recipients were regarded as "uncooperative," or as a deliberate attempt to disrupt any pattern of comfort for the prisoners, and when letters did get through, they were often heavily, and arbitrarily censored.

The Special Rapporteur remarked on "the improvements in access to family through calls and video conferences over time, particularly through the support and cooperation of the ICRC," adding that, "through the perseverance of lawyers and the ICRC, family ties have been established for almost all detainees," although, "[i]n some cases, detainees’ families only learned that their relatives were being held at Guantánamo after 15+ years."

Despite this, however, as the Special Rapporteur noted, in one of the most heartbreaking passages in the report, "Every detainee and family member that the SR met evidenced unrelenting grief and trauma related to the inadequate and arbitrary access to their family at Guantánamo." She found that "failures to ensure notification to family of the situation of detention, including legal status, transfer, and place of detention over time, as well as the ongoing suffering due to a lack of information (particularly for those with family living in conflict zones), the length of time without contact, and intervening family events, such as deaths and births, have prevented the meaningful realization of the right to family."

As she also explained, "Every detainee she met exhibited profound psychological distress and suffering when sharing their loss of family, their unrelenting anxiety for the welfare of their families, and their complete helplessness and lack of power to change their circumstances."

Poignantly, she also noted "the great importance and sense of mutual support and community among the detainees as fellow 'brothers,' particularly under the conditions of confinement that greatly limit meaningful familial contact."

In spite of the progress, "Detainees, 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."

The Special Rapporteur noted that she was "made aware of developments in the frequency of calls between detainees and family members, which increased for 'non-high value' detainees from quarterly to monthly calls for some," but criticized the lack of parity between "non-high value" and "high value" detainees, with family calls for the former only introduced in 2015, and subject to restrictions, spuriously based on "security," that prevent real-time communication with their families. She noted that "she was told that the impact of the extended delays of the non-real-time video calls for 'high-value' detainees makes normal conversations impossible," and stressed that "the discrepancy in family access between categories of detainees" was "arbitrary," also asserting that "there should be an equal right of family access for all detainees irrespective of category."

She also "regret[ted] that despite requests, the U.S. Government has not allowed detainee family members to visit in-person apart from one exceptional example" — that of Majid Khan’s father and sister, who "were permitted to attend a recent military commission proceeding [last October] but only at the sentencing phase." As she noted, "This absolute prohibition continues to breach the U.S. Government’s obligations to detainees to promote and protect their rights to family access under international law."

In closing, she also noted that she was "uniquely concerned about those individuals cleared for release" (currently, 16 of the 30 men still held) "who continue to be subject to limited access to family despite the recognition of their anticipated release." As she explained, "Reintegration may be positively impacted by increases in access," and she "highlight[ed] that relevant military practice supports such a procedure, noting that correspondence with family is often subject to individualized considerations, making the continued restrictions particularly arbitrary for those who are cleared for release."

Justice: The Right to Counsel

Regarding justice — an elusive concept at Guantánamo — the Special Rapporteur began by noting that "[t]he right to access to counsel is well settled under international human rights law and international humanitarian law," and is "vital to ensuring that the rights of all persons deprived of their liberty are respected," adding that it is "an entitlement on the part of all detained persons that attaches from the moment a person is detained."

This, however, was not always recognized at Guantánamo, where men were held for nearly two and a half years (until Rasul v. Bush in June 2004) without any rights whatsoever. The Special Rapporteur "recognize[d] that positive strides have been made regarding access to counsel since Guantánamo Bay detainees were first rendered and endured prolonged periods — in many cases more than seven years — without any effective assistance of legal counsel."

She made a point of "underscor[ing] to the U.S. Government the importance of facilitating prompt, unrestricted, and confidential attorney-client relationships and communications — regardless of the category of counsel — not just because it is required as a matter of international human rights law norms and standards, but also because it is necessary to protect the rule of law, the integrity of the detention review, habeas, and military commission proceedings, and at the most visceral level, the human dignity of men deprived of their liberty for whom meetings with their attorneys are the only external social contact they are granted aside from the time spent with their own 'brothers' and the guard force."

She noted, however, that, across the different types of Counsel — "for military commission proceedings, habeas corpus cases in federal court, administrative Periodic Review Board hearings, and other matters related to detention at Guantánamo" — different government bodies are involved. As she stated, "the DoD Office of General Counsel — together with the Department of Justice, as needed — reviews habeas counsel requests, the Office of Military Commissions reviews military commission counsel requests, and the Periodic Review Secretariat reviews private counsel access." All are overseen by the Undersecretary of Defense for Policy, but although the Special Rapporteur "was informed that while governance across these different categories of counsel may be different, it remains consistent and cohesive in practice," what she found was that that "an arbitrary hierarchy of counsel access has arisen from these distinct procedures."

Based on interviews with detainees and counsel, she found that "the scope of what can be discussed with detainees, the scope of comfort and other essential items that can be provided to detainees, and the scope of access to information including about conditions of confinement and medical developments all depend on the category of counsel, and that guard force personnel invoke the applicable rules and protective orders to justify discrepancies," and noted that she was "deeply concerned that the idiosyncrasies of the various governing regimes have led to arbitrariness and unjustifiable inequities."

As an example, she explained that "she was informed that military commission defense counsel for detainees who have been charged are permitted to bring their clients a far wider range of comfort items and even medicines than counsel for detainees who have not been charged; and military counsel often receives additional information and case updates that are not transmitted to civilian counsel." She "underscored] that all detainees — regardless of whether they have been charged or not or cleared for transfer or not — deserve equal, unhindered access to counsel, particularly given the torture and cruel, inhuman, or degrading treatment to which all detainees have been subject."

It may surprise some readers to realize that, in some ways, "non-high value" detainees have less rights than "high value" detainees, but for those who have studied Guantánamo closely over many years, it is a persistent absurdity, and several of the men held, who were never charged because they were too insignificant, have, on occasion, pleaded with the authorities to find some alleged crime to charge them with, recognizing that plea deals have often been the only way to actually secure release from the prison.

The Special Rapporteur also criticized the U.S. authorities for persistent disruption to attorney-client meetings, which she characterized as arbitrary. She "note[d] with concern that detainees and attorneys alike repeatedly highlighted instances where the U.S. Government denied attorneys in-person and virtual access, often at the last minute while already on the island, without any stated grounds for the denial," adding that "[s]uch restrained access to counsel has severe and persistent mental health consequences for detainees," and she also noted her "particular concern" about "multiple reported instances whereby military commissions counsel with longstanding attorney-client relationships with detainees, including detainees who have previously testified as witnesses in ongoing cases and/or been named in witness lists by the prosecution or otherwise appointed for purposes of ongoing plea negotiations, were denied both virtual and in-person access to their clients, including on the basis that their clients did not have an 'active case or controversy' before the military commissions."

As a result, she "warn[ed] the U.S. Government against asserting exigent circumstances to justify restrictions that functionally undermine the right to counsel access and puts at risk the entire integrity of the military commission system," adding, "The use of bureaucratic delays and opaque justifications to deny the right to counsel access squarely contravenes the right to access to counsel free from 'restrictions, influence, pressure or undue interference from any quarter.'"

After noting "with concern the years-long history of litigation disputing the confidentiality of attorney-client meeting rooms at the Guantánamo Bay detention facility, including in spaces where the same detainees were previously subject to torture and other enhanced interrogation methods," she also reminded the U.S. authorities that, according to international human rights law standards, "[i]nterviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing, of a law enforcement official.”

Justice: The Right to Fair Trial

Regarding the right to a fair trial, the Special Rapporteur "reiterate[d] that the U.S. Government is obligated to ensure that detainees are afforded the fair trial and due process procedural guarantees enshrined under international human rights law," which "includes the right to a fair and public hearing by a competent, independent, and impartial tribunal, the presumption of innocence, the right to be informed promptly and in detail of the criminal charges brought against them and to be tried … without 'undue delay.'"

At Guantánamo, of course, all of the above has essentially been shredded, and of the nine men currently facing charges in the military commissions, six have been caught up in seemingly endless pre-trial hearings for the last eleven years, a shameful situation that led the Special Rapporteur to observe that, "When a trial does not occur within a reasonable time release must be considered."

In a crucial paragraph, the Special Rapporteur thoroughly refuted the U.S. government’s claim that "all detainees who remain at the Guantánamo Bay detention facility are detained lawfully as a matter of international law because the United States is engaged in an ongoing non-international armed conflict with al-Qaida and associated forces and may detain enemy belligerents consistent with the law of armed conflict until the end of hostilities."

As she explained, "under international humanitarian law non-POW detention is based on an imperative threat to security and it is the SR’s position that detention on this basis is an exceptional measure to be sought only on an individuated basis and subject to procedural guarantees including regular, independent, and impartial review of their detention," adding that, "Under a law of war detention framework, internment must cease as soon as the reasons for it no longer exist."

As she further explained, "with the passage of time, the U.S. Government is under an increased burden as the detaining State to objectively demonstrate that each detainee continues to pose a serious security threat." In contrast, however, as she observed "with profound concern," "of the 30 men remaining at Guantánamo, 19 men have never been charged with a single crime — in some cases, after more than 20 years of detention in U.S. custody.”

As well as this being fundamentally unacceptable in and of itself, the Special Rapporteur also noted that she was "concerned that the continued internment of certain detainees follows from the unwillingness of the authorities to face the consequences of the torture and other ill-treatment to which the detainees were subjected and not from any ongoing threat they are believed to pose," and "stresse[d] that neither international humanitarian law nor international human rights law countenances concealing evidence of prior misconduct by the detaining authority as a reason for continued detention."

The Special Rapporteur also took aim at the Periodic Review Boards — a parole-type process, which, over the last ten years, has approved 61 out of 64 prisoners for release — as being a process that "lacks the most basic procedural safeguards," including the fact that it "is a purely discretionary proceeding that is not independent and that is subject to veto by the political officials on the review committee," also noting that the fact that the 16 remaining men who have been cleared for release "remain trapped in the Guantánamo detention facility" is "indicative of the Periodic Review Board process’ disconnect from any actual release and the arbitrariness of the cleared men’s ongoing detention."

She also noted how the prisoners’ habeas corpus rights, long fought for in the courts, have been undermined, with those rights having ended up being "overwhelmingly ineffective both in efficiency of process and delivery of the remedy of actual release for detainees," and then turned to "fundamental fair trial and due process deficiencies in the military commission system," noting how, "As one detainee interviewed expressed with exasperation, the system is paralyzed but their only option is to engage."

As she proceeded to explain, "The endless delays in their cases, and the U.S. Government’s failure to even move past the pre-trial phase clearly fail to meet the 'undue delay' threshold," and she also "expresse[d] serious concern that the military commission hearings have been inundated with an array of procedural obstacles and legitimacy challenges, ranging from issues with interpretation — including due to alleged bias and lack of independence and impartiality — and significant technological failures in the courtroom, to abrupt prosecutor and judge retirements and resignations and conflicts of interest."

As she noted, "constant exposure to judicial uncertainty and arbitrariness induces a growing sense of helplessness and hopelessness among many detainees and over time, leads to chronic anxiety and depression," and, as she added, "generally the longer a situation of detention lasts, the higher the likelihood that the prohibition of torture, cruel, inhuman, and degrading treatment has been breached." As a sign of how bad the situation is, she further explained that these are men who "have been held in U.S. custody for over 21 years, with virtually nothing they can do to influence their own situation."

After recognizing "the ongoing plea bargain negotiations," which may be the only way out of the deadlocked pre-trial hearings, she "expresse[d] concern at the extent of secrecy that pervades all of the available judicial and administrative proceedings," noting that she was "particularly concerned about the presumptive classification review of substantial information arising from Guantánamo," and difficulties experienced by defense lawyers who are "unable to challenge whether evidence produced was derived from torture."

In conclusion, the Special Rapporteur found that "the United States has failed to promote and protect fundamental fair trial guarantees and [has] severely impeded the detainees’ access to justice," noting that, "Based on the cumulative conditions of fair trial violations set out above," which are "compounded by the lack of access to family, significant physical and mental health problems, and other conditions of confinement," it is "highly unlikely that any detainee can effectively assist with and participate in their own defense."

Moreover, she found that "the compounding effect of the abovementioned fair trial violations — with respect to all present detainees, regardless of their category of legal proceedings — are of such gravity as to give the deprivation of liberty an arbitrary character,” echoing earlier findings this year by the U.N. Working Group on Arbitrary Detention, in the cases of Abu Zubaydah (one of the three men who have neither been charged not approved for release) and Abd al-Rahim al-Nashiri, one of the six men caught up in pre-trial hearings for the last eleven years.

Although she recognized that "the material conditions of detention at Guantánamo Bay have improved substantially since the first detainees were transferred and in the following years when it was a place characterized by institutionalized and systematic brutality and enduring harm to all who were detained there," and that "[e]very detainee she met confirmed this improvement," she also noted that she was required "to both acknowledge substantial improvements to the material conditions of confinement and equally to address as a separate matter, if current detention practices are in compliance with international law."

"Ongoing cruel, inhuman, and degrading treatment" that "may also meet the legal threshold for torture"

On this latter point, the Special Rapporteur’s conclusion was unwaveringly critical. Taking into account the failure to "provide any torture rehabilitation to detainees," and the continuing violence at the prison, the "structural and entrenched physical and mental healthcare deficiencies," the "inadequate access to family," and the "ongoing, arbitrary detention characterized by fair trial and due process violations," even though the U.S. Government "is intimately aware of the depth and severity of many detainees’ current physical and psychological harms," her conclusion was that "the totality of these factors, without doubt, amounts to ongoing cruel, inhuman, and degrading treatment at the Guantánamo Bay detention facility, and may also meet the legal threshold for torture."

Let that sink in: After the first ever visit to Guantánamo by a U.N. Special Rapporteur, she has found that, despite improvements to conditions under President Obama and President Biden, the prison’s systemic breaches of human rights obligations mean that the entire existence of the prison constitutes "ongoing cruel, inhuman, and degrading treatment," which "may also meet the legal threshold for torture."

The Biden administration should take on board this unwaveringly critical assessment, move swiftly to free the 16 men approved for release, and ensure that the treatment of all the men still held meets internationally agreed human rights obligations. A whining one-page response disputing many of the Special Rapporteur’s findings, and seeking to evade culpability by claiming that her conclusions "are solely her own and do not reflect the official views of the United Nations," is nothing short of insulting.

In conclusion, as if damning assessments about arbitrary detention, cruel, inhuman, and degrading treatment and torture were not enough, the Special Rapporteur also observed that the U.S. government has "an ongoing obligation to ensure the preservation and access to both prior and present detention sites, tied directly to Member State obligations to undertake prompt, independent, and effective investigation of torture under the Convention Against Torture," noting also "an ongoing obligation to investigate the crimes committed at Guantánamo, including an assessment of whether they meet the threshold of war crimes and crimes against humanity."

As noted at the start of this article, the Special Rapporteur’s report concludes with a section dealing with the repatriation and resettlement of former prisoners, which I’ll be discussing in a second article to follow.