More than 80 percent of detainees in the survey were housed in isolated facilities far from legal aid organizations, creating heavy caseloads of 100 detainees per attorney, The Los Angeles Times reported. Another 10 percent had no access to legal representation:

“While access to legal counsel is a foundation of the U.S. justice system, our survey found that the government continues to detain thousands of men and women in remote facilities where access to counsel is limited or nonexistent,” said Mary Meg McCarthy, executive director of the National Immigrant Justice Center. “In some facilities, it is impossible for detained immigrants to find attorneys.”

Federal officials said they were making progress in helping provide legal help for detained immigrants.

“ICE is committed to allowing detainees access to telephones, legal counsel and law library resources,” agency spokesman Brian Hale said in a statement. “ICE is working with our stakeholders, including the U.S. Department of Justice … and nongovernmental organizations, to expand and support pro bono representation for those in our custody.”

ICE has attempted to reform its detention system, but human rights groups have argued more reform is necessary. One major issue is that immigrants must know — or be told — some of their rights so they can seek out legal representation. The survey found that more than half of facilities did not offer detainees information about their rights.

The Justice Department provides a list of free legal service providers in many areas, and large detention centers often have libraries with information on the legal system. But these services vary from center to center. Ultimately, access to a lawyer can have a huge impact on the outcome of a detainee’s case:

A 2005 Migration Policy Institute study found that 41% of detainees applying to become lawful permanent residents who had legal counsel won their cases, compared with 21% of those without representation. In asylum cases, 18% of detainees with lawyers were granted asylum, compared with 3% for those without.

Migration Policy Institute argued that granting better access to lawyers would save money by making the process more efficient — saving some of the $122 per day costs of detention.

In Virginia, a $21 million center will soon house up to 584 detainees, with possible plans to expand to 1,000 detainees in its first year. Immigration and Customs Enforcement Assistant Director Robert Helwig said the new facility is needed to deal with the “surge in detainees” that will come from Secure Communities’ recent expansion in the state. Virginia and Washington, D.C., have already seen a huge increase in the number of illegal immigrants detained:

With three months left in the fiscal year, the number of illegal immigrants with criminal convictions detained in Virginia and the District has increased by 50 percent from last year’s total, to 2,414. Those numbers are expected to increase now that the program is being implemented statewide. …

There’s one point on which experts across the spectrum agree: Without additional detention space, the program cannot function. ICE has detained fewer than one-quarter of the immigrants identified by Secure Communities, a range of suspected criminals facing charges as varied as misdemeanors and murder.

In Arizona, Sheriff Joe Arpaio has a different approach to dealing with the influx of detainees: tents. Arpaio said he has room for at least 1,000 new prisoners in tents in the desert, a “Tent City” in triple-digit temperatures he has operated since 1993. His motives may be less pure than simply finding a place to put detainees:

“I put them up next to the dump, the dog pound, the waste-disposal plant,” Arpaio once said of his tactics, which have also included chain gangs (for men and women), public parades in pink underwear (for men only), and massive illegal immigration sweeps. Arpaio’s tactics have earned him the nickname “Hitler” among Tent City inmates, according to The New Yorker. They’ve also have prompted thousands of lawsuits against “America’s Toughest Sheriff,” as well as a federal investigation into his immigration sweeps. “Sheriff Arpaio has absolute contempt for the dignity of the people in his custody and demonstrates this by treating people like circus animals,” the ACLU wrote on its blog.

Christi Parsons reports for the Chicago Tribune:

Writing to members of the Illinois delegation in Congress, Asst. Atty. Gen. Ronald Weich reaffirmed the administration’s “commitment to acquiring the facility this year,” and provided details about steps planned for the next few months.

The Justice Department’s Bureau of Prisons plans to hire and train employees while other administration officials “work with Congress to obtain authorization and funding for a portion of the Thomson facility,” Weich wrote in the letter, obtained by the Tribune Washington bureau.

No timetable for the purchase, though. Will Obama punt on this until after the midterm elections?

Michele Flournoy, left, created the Office for Rule of Law and International Humanitarian Policy, which is led by Rosa Brooks. (ZUMA, Bloggerama)

For the first time, the Department of Defense has established an office to guide policy on emerging non-traditional military activities like compliance with the rule of law, humanitarian emergencies and human rights. It’s a bureaucratic change that effectively frames international legitimacy as a security issue, a reflection of the legacy of the Iraq and Afghanistan wars among some policymakers. And the office’s first test may be its perspective on the thorny questions surrounding how the department handles al-Qaeda and Taliban detainees.

[Security1] Announced within the Pentagon in late May, the Office for Rule of Law and International Humanitarian Policy is being led by Rosa Brooks, a senior adviser to Undersecretary of Defense for Policy Michele Flournoy and a former director of Georgetown Law School’s Human Rights Center. It endeavors to ensure that the broad strategic aims of the Obama administration regarding adherence to a rules-based international order don’t get lost in the pressures of military contingencies. It will also advise senior Pentagon officials on their contributions to interagency planning and White House requests for advice on rule-of-law compliance, and will work with Congress and non-governmental organizations focusing on its host of issues.

The office — created by Flournoy with support from Defense Secretary Robert Gates and run by a staff that will eventually number 20 people — reflects a recent recognition that the legitimacy of the U.S. military in combat plays its own battlefield role, especially in conflicts like Afghanistan, where perceptions by civilians about whether to support America’s allies or its adversaries are considered decisive. “The counterinsurgency and counterterrorism doctrine has really moved in the direction of saying that these issues are not luxuries,” Brooks explained in a Monday interview at the Pentagon. “These issues are absolutely central to achieving our military objectives in a counterinsurgency or a counterterrorism environment, where the name of the game is ‘Do you have credibility? Do you have legitimacy? Are you building the structures that support long-term stability?’”

Many of the office’s emerging responsibilities will center on entrenching respect for the rule of law and human rights as a core focus within the Defense Department. Previously, Pentagon officials who worked on those issues were spread throughout the policy directorate, in bureaus as disparate as Counternarcotics and Detainee Affairs, a reflection of the secondary — Brooks called it “ad hoc” — treatment the department has traditionally provided to humanitarian concerns. Karen Greenberg, the director of New York University’s Center on Law and Security, said the office needs to “restore the notion that the rule of law is there on the table no matter what.” Matthew Waxman, a deputy assistant secretary of defense for detainee affairs at the end of the Bush administration, added that “sometimes important strategic issues can fall into bureaucratic seams, and redrawing parts of the organizational map can help address that.”

That contrasts with the previous administration’s perspective that human rights and the rule of law were impediments to effective military operations. President Bush famously judged in 2002 that al-Qaeda and Taliban detainees ought to be treated humanely “to the extent appropriate and consistent with military necessity.”

While building a staff and a budget means that Brooks anticipates the office’s agenda will take shape over the next several months, she said some early priority “areas to look at” include the Defense Department’s security assistance and training for partner militaries — to ensure it “not inadvertently undermin[e]” the U.S. interest in promoting the rule of law — and the effectiveness of department support to judicial systems.

Developing broader policy guidance to protect civilians during combat is another likely focus for the office, Brooks said, citing Gen. Stanley McChrystal’s guidance to his troops in Afghanistan about the need to secure civilian support for NATO military operations. “Reducing civilian casualties supports achieving military objectives,” Brooks said. “If the population is furious at you because bombs keep falling on schools, it’s harder to achieve your objectives.” She added that the propriety of “a global directive of that sort” required further study, but anticipated that any such study would have “potential consequences” for crafting military doctrine on protecting civilians.

“The goal would be to see if we need to make changes,” Brooks said, stressing that her agenda is still preliminary. “It’s a moral goal, and it is a tactical and strategic goal, to minimize civilian casualties. Are we doing it as effectively as we could? Do we have the systems in place, the doctrine in place, the training in place, to do as well as we could, while recognizing that doctrine, training, et cetera matters?”

In some cases, like U.S. compliance with treaty obligations, Brooks said she expects her office to serve in a supporting role to other agencies, while taking the lead on issues where the military has the greatest stake. “The State Department can’t determine whether DOD needs to revise its doctrine to better protect civilians,” she said.

Some human-rights advocates greeted the establishment of the new office with optimism. “To the extent the Pentagon is engaging directly with foreign governments, having a human rights voice in that room is extremely important, so the U.S. speaks with a single voice,” said Tom Malinowski of Human Rights Watch. “You don’t want the State Department coming in one day with a broad policy agenda [including] respect for human rights and humanitarian principles and the Pentagon coming in the next day talking about basing rights without the two being coordinated.”

Greenberg said the big test for the office will be its ability to help influence the emerging shape of detainee policy. Administration officials and congressional leaders have discussed the creation of frameworks for indefinite detention without charge, an idea that found its way into the National Security Strategy under the rubric of creating an “approach that can be sustained by future Administrations, with support from both political parties and all three branches of government.” Malinowski cautioned against viewing detainee policy as a crucible for the new office, but said he hopes the office can “guard against the tendency of the Pentagon as an institution to reflexively defend the expanded powers that it received in the last administration.”

Brooks said that her office “will work very closely” with Col. William Lietzau, the deputy assistant secretary for detainee affairs, but did not specify any programmatic agenda. “Bill Lietzau is someone who’s already attuned to those issues anyway, so those are the kinds of conversations that we’re always having,” Brooks said, concerning how to “make sure that as we try to work through these thorny inherited detainee issues that we’re doing it in a way that buttresses our broad commitments to rule-of-law norms.”

“And it’s not easy on those issues,” she added. “The briar patch we started out with has been a tough one to get ourselves out of without sustaining a lot of little scratches.”

Waxman wrestled with those issues while he ran detainee policy for the Rumsfeld Pentagon. He hailed Brooks’ office as a step toward integrating law and strategy. “Often those issues are thought of as separate spheres: The lawyers in the general counsel’s office and the military judge advocates say what the legal bounds are and the policy advisers and military planners and operators decide within those bounds what the strategy is,” Waxman said. “That’s too simplistic and risks missing the many ways in which the two operate in tandem, and this new office looks like it’s intended to help ensure they do so effectively. For example, the United States may have a strategic interest in abiding by certain standards, because we want to promote those standards abroad among foreign forces or because it’s believed to strengthen counterinsurgency efforts to win hearts and minds.”

Brooks herself will continue to wear several hats in the Pentagon. In addition to becoming the first deputy assistant secretary of defense for Rule of Law and International Humanitarian Policy, she’ll remain Flournoy’s senior adviser and helm the policy directorate’s Global Strategic Engagement Team. “Rosa is an excellent person to do this job,” Malinowski said. “I’m happy to hear the position has been created and happy to hear she’s filling it.”

[Security1] It’s unclear when the Obama administration will actually close the facility. There’s a possibility it could still carry out the closure before the end of the year: The Defense Department has asked Congress for $350 million for all aspects of closing the Guantanamo detention facility and purchasing a new Illinois prison to house the residual population that has yet to be tried or repatriated (as well as about 48 detainees the administration seeks to hold in indefinite detention). It has placed the money in the politically potent request for funding operations in the Afghanistan war. That choice itself reflects the bipartisan resistance in Congress to actually closing the facility, despite both party’s presidential candidates in 2008 running on a pledge to end an international symbol of infamy.

Accordingly, a group of reporters toured a few of Camp Delta’s nine facilities today to get a highly constrained glimpse of residual life in Guantanamo Bay. The military command has reviewed every photograph presented here to prevent inadvertent disclosures of classified information; seven photographs I took were deleted.

A rare glimpse between two outer layers of security surrounding Camp 5 and Camp 6, two facilities modeled on prisons in Indiana and Michigan. Recently-relaxed rules for restricting photography now allow some visual representation of the shoreline. We did not get to see Camp 7, a facility containing high value detainees. “We do acknowledge there’s a Camp 7,” said Lt. Col. Andrew McManus, the deputy commander of the Joint Detention Group, which oversees detention operations. “That’s all we say about it.” When I asked if the 14 detainees at Guantanamo Bay who arrived in September 2006 from undisclosed prisons run by the CIA — including Khalid Shaikh Mohammed and his fellow 9/11 co-conspirators — lived in communal housing or are held in individual cells, McManus replied, “I know nothing about that whatsoever.”

A detainee jogs around the central recreation yard in Camp 4, a communal-housing facility for detainees who comply with guards’ orders. When he saw a group of reporters taking pictures of the area, he yelled out in English, “Put me beside bin Laden!” The consensus of the press corps was he was joking.

Two contrasting images from an area in Camp 4 used for holding educational classes. With the exception of the prayer mat, the recreational materials on this table — the Soduko book, the art supplies and the magazines — are comfort items provided to help “compliant” detainees at Camp 4 while away the time. In the makeshift classroom, detainees watch DVDs — some are said to be partial to Jackie Chan movies and the Alaskan fishing show “Deadliest Catch” — as well as attending art and language and “life skill” courses. But across the floor in the classroom are small metal eyebolts used to shackle detainees to their seats during the classes. “For the safety of the instructor, the detainees are shackled,” McManus explained.

Camp 6, modeled on a Michigan prison, is a $37 million facility consisting of eight blocks of 22 cells. It’s a communal-living facility, meaning detainees live with each other, although there are several cells that aren’t big enough for more than a single occupant. Here, a detainee — a slight man, maybe about 5 foot 5 — ambles over from a common area to speak amiably with a guard, who’s separated from the detainee by a schoolyard-fence style barrier. I was allowed to publish these photographs because I blurred the detainee’s faces.

This is the ceiling of a single-occupancy detainee’s cell in H Block in Camp 6, just above the toilet. I laid down on the concrete platform set up for a detainee’s bed to get a sense of what might be the last thing he sees before going to sleep at night.

Another shot from the recreation yard at Camp 4. The only towers we’re allowed to photograph are those with guards manning them, and only then if the guard’s face isn’t able to be determined. Similarly, the crouching detainee below pulled the collar of his shirt above his nose, obscuring his face enough so that a photograph of the scene could clear a security review.

We weren’t allowed inside this Camp 4 facility. While there’s no indication this behavior persists at Guantanamo, early in the detention facility’s existence, behavioral-science teams were involved in abusive interrogation and detention operations, as a Senate Armed Services Committee report in 2008 meticulously documented. There haven’t been accounts of behaviorally-enhanced interrogations for years. “We have visitors here every day of the week,” McManus said, including the International Committee of the Red Cross.

A view of the American flag through the perimeter fences around Camp 4 and Camp 5. A Toronto Star journalist remarked that it was probably the single most photographed American flag around. Then she snapped some pictures.

There are tight restrictions on what we can and cannot film and photograph. I’ll attempt to get as visual a presentation of the facilities as I can provide. I haven’t been to Camp Delta — the facility that comprises all six detention facilities — since summer 2005. Back then, the sixth camp hadn’t even been constructed. For a sense of what it looked like five years ago, check out this piece I wrote at the time. I’m very curious to see what’s changed and what hasn’t.

One thing that’s already noticeably different is the media strategy. Five years ago, press handlers at Guantanamo worked to convince visiting reporters that Guantanamo was vital to national security and allegations of abuse were either unfounded or overblown. Upon preliminary observation, that doesn’t appear to be the current approach. No public affairs officer is aggressively questioning reporters to determine hostility to indefinite detention and persuading or hectoring them into acquiescence with the goals of Guantanamo.

The new slogan, emblazoned on the press packets here, is “Safe, Humane, Legal, Transparent.” Reporters who’ve come here recently have told me that the number-one goal of the press strategy here is to convince reporters that the detainees are currently treated humanely and the facility is run professionally — regardless of anyone’s particular view about indefinite detention or military commissions.

More when I get back from the tour of the detention facilities, currently home to 180 or so detainees.

According to an internal investigation, [Kappes] helped tailor the agency’s paper trail regarding the death of a detainee at a secret CIA interrogation facility in Afghanistan, known internally as the Salt Pit.

The detainee froze to death after being doused with water, stripped naked, and left alone overnight, according to reports in the Washington Post and Los Angeles Times. He was secretly buried and his death kept “off-the-books,” the Post said.

According to two former officials who read a CIA inspector general’s report on the incident, Kappes coached the base chief—whose identity is being withheld at the request of the CIA—on how to respond to the agency’s investigators. They would report it as an accident.

A CIA spokesman vigorously denied all aspects of that account to Stein, whose sources stand by it. I am filing a Freedom of Information Act request this morning for the CIA inspector general’s report allegedly implicating Kappes in the Salt Pit death.

If the United States can’t obtain convictions because it tortured detainees at Guantanamo, Coughenour said at a discussion hosted by the Constitution Project and the Open Society Institute, “So be it.” In those cases, the U.S. must simply accept that losing out on a prosecution is “part of the price you pay for being committed the way we are to due process and a constitutional process for convicting people.” As to the contention that those detainees are too dangerous for release, “the world is not at a loss for dangerous people,” said the judge, who presided at the trial of would-be Millenium bomber Ahmed Rassam in 2005.

In a separate statement, Anthony Romero, the executive director of the American Civil Liberties Union, said that it would be “an error of historic proportions” to institute indefinite detention without charge outside of Guantanamo. “While the administration should transfer prisoners to the U.S. for federal court trials, it should not create a ‘Gitmo North’ by bringing them to facilities in the U.S. or anywhere else to be illegally held without due process,” Romero said in the statement. “This practice was wrong in Cuba and would remain so here, reducing the closure of Guantánamo to a symbolic gesture.”

“Even if the Obama administration continues to work to close Guantánamo, by pursuing a policy of indefinite detention without charge, the damaging policies that embody the prison will continue, as will the negative effects to American values, the rule of law, and our nation’s reputation abroad,” said Virginia Sloan, president of the Constitution Project. “The constitutional way to fulfill the president’s commitment to closing Guantánamo is to prosecute suspected terrorists in federal court, and to oppose the use of military commissions and indefinite detention without charge. There is widespread bipartisan support for closing Guantánamo in a way that returns our nation to its constitutional principles, as embodied in Beyond Guantánamo: A Bipartisan Declaration.”

After talking to some knowledgeable individuals, I think I need to revise and extend this post. I may have incorrectly suggested that the SCOTUS ruling Boumediene established a right for detainees to receive a trial, which I didn’t mean to suggest, because it doesn’t: it establishes that detainees can contest their detention by the government, a narrower class. If they lose their habeas hearings, as some have, then they’re out of luck, trial-wise. As of right now, the Supreme Court has not directly and decisively ruled on the question of whether the government has the power to detain people in the war against al-Qaeda indefinitely and without charge. (Not that I’m a lawyer … ) The point I was trying to make in the earlier post was that the vector of court rulings since 2004 has been to erode the government’s power to use the so-called “war on terror” as an all-purpose rationale for all manner of detentions.

All this raises the question of how the powers claimed by the Bush admin– oh, sorry, the Obama administration to detain someone indefinitely can withstand a legal challenge. The Supreme Court ruled in 2008 that Guantanamo detainees have a right to habeas corpus, a decision that removed the last argument for keeping the detention facility open as a venue for holding someone without charge. Obama plans to move the remaining detainees to the Thomson Correction Center in Illinois. Does the administration expect the courts to suddenly determine that the Constitution of the United States applies less to Illinois than it does to a naval base in Cuba? The cynical view is that the administration is looking to the courts to take the political heat of determining that the detainees must either be charged in some venue — civilian trials or military commissions — or released.

But the administration still needs Congress to provide the money for it to purchase Thomson. It plans to go to Congress at some point and say, “We need money to close one facility used for indefinite detention and purchase … well, another facility we plan to use for, among other things, indefinite detention. And we’re going to start that facility over from scratch!” Why would Congress approve that money?