But one aspect amid the increases has not changed -– there has been no federally-mandated minimal level of oversight for facilities run by private prisons.

There are three main issues that worry critics about the lack of oversight in privatized facilities: the standards of confinement, the cost oversight and the ability to get information on either of these points from privately-run detention facilities.

“I think that prisons are closed institutions in general as they are outside the public view … and most citizens have very little understanding of what goes on behind the closed doors,” said Michele Deitch, a senior lecturer at the University of Texas School of Law. “But that changes dramatically when looking at private prisons.

“They are not subject to the same requirements about open records, the sharing of public information,” Deitch continued, “and because they have a contract with the government, not directly with the people, there is a layer of bureaucracy and privacy that is even deeper.”

This growth has been led by a handful of companies, including the two largest private prison companies, Corrections Corporation of America (CCA), which partners with all three federal corrections agencies, according to its website, and “almost half of all states and several municipalities;” and GEO Group, which runs prisons outsourced by federal, state and local prison bureaus as well as immigration facilities around the country.

CCA houses 75,000 inmates at more than 60 facilities in 19 states, and GEO Group follows closely behind with more than 60 facilities in more than 15 states, as well as a prison health-care arm.

According to the U.S. Department of Justice (PDF), the growth of the inmate population in private prisons is 5 percent a year. This does not include jails or immigration detention facilities. In the latter, private companies control nearly half of all detention beds.

Private prison oversight so far

Historically, federal courts have stepped in to oversee particularly egregious examples of prison abuse, but because no federally-mandated minimal level of oversight exists, how private contractors are watched depends on the locality doing the contracting.

“The issue of transparency is really big,” said Mel Wilson, assistant director of Officer Workforce Studies at the National Association of Social Workers. “If you look closely at the criminal justice system, each state has a lot of latitude in structuring what level of oversight it has.”

At the federal level, the Office of Federal Detention Trustee (OFDT) was created in 2000 to provide oversight of federal prisons, but the creation of the Department of Homeland Security in 2003 — and decreased focus on the detention crisis — has left the OFDT to function primarily as a Department of Justice agency that contracts out prisons with private companies, according to a 2010 report from the Center for International Policy.

Immigrations and Customs Enforcement (ICE) also established an Office of Detention Oversight in 2009 to look over the then-32,000 detention beds in 350 facilities. Most of these were not run by ICE employees, the ICE fact sheet noted, but were “operated by county authorities or detention centers operated by private contractors.”

Both CCA and GEO Group, the biggest players in the private-corrections-facility game, lobby directly to some of these agencies. In 2011, CCA spent $810,000 on lobbying agencies including the U.S. Marshals Service, which awards private-prison contracts, and the Bureau of Prisons. GEO Group spent $160,000 lobbying in 2011 -– it expanded its agency targets to ICE, the Department of Homeland Security (DHS) and the Department of Justice, according to Open Secrets.

Recently, GEO Group lobbied on a DHS budget bill, in particular on the issue report related to alternatives to detention for immigrants. CCA also lobbied on the bill, focusing on three issue reports about budgeting for federal agencies overseeing detention. The filings do not say the position of the companies.

On the local level, 27 states have bodies with mandatory inspection duties, eight states have a discretionary monitoring authority, three have a statewide voluntary inspection body and five states have a local jail inspection body, according to a study (PDF) in Pace Law Review by Deitch.

Seventeen states — Arizona, Connecticut, Georgia, Kansas, Louisiana, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, Rhode Island, South Dakota, Vermont, West Virginia, Washington, Wyoming — have no oversight bodies at all.

The states with the two fastest-growing prison populations (PDF) -– West Virginia and Indiana -– both have little or no regularized oversight, and no independent monitoring agencies.

In Indiana, where the prison population increased 5.2 percent between 2008 and 2010, according to the Pew Center (PDF), an ombudsman with the state government is charged with investigating any prison-related grievances submitted voluntarily.

West Virginia’s facilities are overseen by the West Virginia Regional Jail and Correctional Authority, though its oversight is not enforced through regular inspections and the state has “no formal external prison or jail oversight mechanisms.”

This can be contrasted to what Deitch calls one of the best prison oversight systems –- Ohio, which provides external oversight of its prisons through the Correctional Institution Inspection Committee, which was created by the state Legislature for independent oversight in 1977.

Private prison exceptionalism

But with private prisons, critics say setting up effective oversight mechanisms is only part of the battle.

“There is just example after example of the failure of oversight,” said David Shapiro, a staff attorney at the National Prison Project of the American Civil Liberties Union, which has monitored prison issues since 1972.

The Corrections Corporation of America notes on its website that over 93 percent of it’s 60 facilities have passed an audit done every three years by the American Correctional Association (ACA), another private group that “offers training, support and operational standards to correctional facilities and officers.”

But critics question the reliability of the audit. A three-year accreditation (PDF) from the ACA costs $3,000 per day and $1,500 dollars for the each auditor on the team. Ken Kopczynski, with the non-profit Private Corrections Working Group, writes that this is a sign of pay-for-play.

Kopczynski also notes that “at least two CCA employees serve as ACA auditors – CCA warden Todd Thomas and company vice president Dennis Bradby,” further breaking down the ACA’s authority as an independent auditor.

Meanwhile, CCA has dealt with lawsuits around the country. Hawaii took more than 200 prisoners back from CCA prisons outside the state after they alleged they had been abused by guards; 234 inmates from Colorado sued CCA for injuries suffered from guards after a riot they didn’t participate in; and in Minnesota the company was a defendant in eight cases between 1997-2006, according to court records obtained by staff at The Minnesota Independent.

Future steps

Deitch stresses the importance of independent oversight for objective observation of a facility. Budgets cuts could make localities “less likely to be able to conduct appropriate oversight,” which puts both prisoners and staff in danger.

Shapiro, with the ACLU, also worries about the revolving door. In New Mexico, the corrections secretary Joe Williams didn’t penalize CCA and GEO Group for breaking their contractual obligations by running under-staffed prisons and then pocketing extra profits. As The New Mexico Independent reported, before becoming corrections secretary, Williams was hired by GEO Group as a warden for the Lea County Correctional Facility.

The American Bar Association (ABA) passed a resolution in 2008 calling for independent correctional oversight in every jurisdiction that has now been adopted as part of ABA policy. Deitch co-chairs the ABA’s committee on correctional oversight.

But Shapiro says no amount of oversight can ever make as opaque an institution as a private prison function transparently. The ACLU has called for the “elimination of private prisons” in its policy priorities as far back as 2001.

“The best approach to private prisons is just say no,” said Shapiro “No amount of oversight can really account for the problems with the profit motive and the problematic incentives that it creates.”

(Jon Collins contributed to reporting this story)

I will say that we have always maintained that we need increased prison facility, and I think the law prevents the Department of Defense from — but not the Department of Justice — from purchasing such a facility.

The annual Justice Department funding bill has only barely arrived in the House Judiciary Committee, so perhaps that will become the vehicle for the purchase.

Gibbs also said that the administration will send a report to Congress explaining why the Thomson-based Guantanamo closure makes sense. But it’s not clear from the summary language of the markup of the defense authorization bill that receipt of such a report will unlock the Thomson money. Either way, the administration needs to get on that: A full House vote on the bill is expected next week.

The sun rises over Camp Delta at Guantanamo Bay. (MICHELLE SHEPHARD/TORONTO STAR)

The Obama administration’s longstanding pledge to close the detention facility at Guantanamo Bay just hit a major obstacle in the House, creating doubts over whether the detention facility can be closed this year — if at all.

Last night the House Armed Services Committee finished this year’s bill authorizing $567 billion worth of defense spending and another $159 billion for the Afghanistan and Iraq wars for the fiscal year beginning in October. Following an administration budget plan announced in February by Pentagon comptroller Robert Hale, the Afghanistan war request contained a vague provision — indeed, not even carrying the words “Guantanamo Bay” — called a “transfer fund” to authorize the purchase of the Thomson Correction Center in Illinois. The administration wants to buy Thomson in order to have a secure facility on U.S. soil to house those Guantanamo detainees it designates for military commissions or indefinite detention without charge. Once the federal government buys Thomson, it can shut down Camp Delta at Guantanamo Bay.

[Security1] Or that was the plan. The actual bill hasn’t been released yet. But buried at the bottom of an extensive summary the committee released last night is an express prohibition on the use of any Defense Department money to buy a new detention facility. According to the bill summary, the bill now requires Defense Secretary Robert Gates to give Congress a report that “adequately justifies any proposal to build or modify such a facility” if it wants to move forward with any post-Guantanamo detention plan.

“The Committee firmly believes that the construction or modification of any facility in the U.S. to detain or imprison individuals currently being held at Guantanamo must be accompanied by a thorough and comprehensive plan that outlines the merits, costs, and risks associated with utilizing such a facility,” the summary text read. “No such plan has been presented to date. The bill prohibits the use of any funds for this purpose.”

That might place insurmountable obstacles to the the so-called “Gitmo North” plan to transfer Guantanamo detainees to Thomson. “They can’t just create Guantanamo North and move everyone up there. That’s clearly barred,” said Chris Anders, a senior lobbyist for the American Civil Liberties Union who monitored yesterday’s mark-up. “It doesn’t mean that the proposal is dead, but it’s hard to see how it makes a comeback after the House Armed Services Committee says there can’t be money spent on Thomson.”

That’s not all. While the bill doesn’t renew the current Congressional ban on transferring detainees from Guantanamo into the U.S. — set to expire in October — it requires President Obama to submit a “a comprehensive disposition plan and risk assessment” for any future detainee transfer. Congress would then get “120 days to review the disposition plan before it could be carried out.” Additionally, Congress would get a 30-day review period for the proposed transfer of any detainee from Guantanamo to a foreign country in order to check against a detainee inflicting violence against the U.S. or its interests. The summary instructs Gates to tell Congress that any such foreign transfer meets “strict security criteria to thoroughly vet any foreign country to which a detainee may be transferred.”

The bill, which passed the committee on a vote of 59 to 0, will go to the House floor and receive a vote most likely next week. A Senate Armed Services Committee mark-up of the companion bill in the Senate is scheduled for the end of May.

This is a major setback for Obama’s campaign pledge to close the Guantanamo Bay detention facility. While it’s theoretically possible for an amendment authorizing the Thomson purchase to come back into the bill during floor debate, “this makes it much, much harder for the administration to move forward with the closure of Guantanamo, there’s no doubt about that,” said Vincent Warren, the executive director of the Center for Constitutional Rights. “It’s hard to see what reasonable options the president has without jumping through congressional hoops that are unreasonable and unnecessary, and it’s harder to move forward both with prosecuting those who are terrorist suspects and releasing to freedom those who are not.”

But beyond the closure of the detention facility itself, the prohibitions now contained in the bill have policy implications for the dispensation of justice for detainees remaining at Guantanamo, a burning political issue all through this year. Those “abhorrent” prohibitions, Warren said, “essentially prohibit the executive from moving forward with its constitutional and human-rights obligations to try people [and] creates a paradigm where the operative default mechanism will be to detain people without trial.” In April, Attorney General Eric Holder pledged to work with Sen. Lindsey Graham (R-SC) on a new legal architecture for indefinite detention without charge.

Anders took a more optimistic view. If the bill passes, as is likely, the administration “will have to work harder and work faster at what they’ve been doing effectively for the past 16 or 17 months, which is repatriating and resettling detainees one by one who have been cleared and then bring people here for prosecution,” Anders said, even with the new congressional repatriation restrictions. This week, one of those detainees the administration designated for civilian prosecution, Ahmed Khalfan Ghailani, who has been transfered to a Manhattan prison, unsuccessfully urged a federal judge to dismiss his case.

But such an incremental approach would not allow Obama to close the facility until the last detainee either leaves or faces criminal charges, a process likely to take years even without all of the political obstacles that have emerged around terrorism trials and holding terrorism defendants in federal corrections facilities. Additionally, it would require Holder and the Obama administration to abandon a decision that has been much reviled in the civil libertarian community: designating 48 detainees currently held at Guantanamo for continued indefinite detention without charge.

Closing the detention facility at Guantanamo Bay was a bipartisan goal before President Obama took office, with both President Bush and Sen. John McCain (R-Ariz.), the 2008 Republican presidential nominee, rhetorically committed to shutting down an international symbol of American lawlessness. But an effective campaign waged by conservatives to portray the closure as negligent with national security — and Obama and the Democrats as weak for seeking it — has raised the political stakes for Democratic members of Congress. Last year, the Senate voted with 90 votes to prohibit the transfer of detainees from Guantanamo to the U.S., and this year, the still-unresolved question of whether Khalid Shaikh Mohammed and the 9/11 conspirators ought to be tried in civilian courts or military commissions has become Holder’s defining challenge. With Republicans hostile to the Guantanamo closure plan likely to gain seats in Congress after the November midterm elections, future attempts at closing the facility are likely to face even greater political opposition.

Requests for comment to the White House and the Office of the Secretary of Defense were not immediately returned.

President Obama and Omar Khadr (WDCpix, The Toronto Star/ZUMApress.com)

Starting this week, something will happen that was never supposed to when Barack Obama took the oath of office. A military commission meeting at Guantanamo Bay nearly five months after Obama said the detention facility would cease to exist will hold a pre-trial hearing for Omar Khadr, a Canadian citizen captured by U.S. forces in Afghanistan in 2002 and accused of throwing a grenade that killed a U.S. soldier. At the end of the hearing, it will likely be possible to tell whether Obama’s changes to the military commissions created and advocated by George W. Bush — and most congressional Republicans — are substantive or cosmetic.

[Security1]Khadr, a teenager when initially detained, has been held for nearly half his life at a facility that the Obama administration has pledged to close. He will be tried in a legal venue that Obama rejected as a Senator and embraced, in reformed fashion, as president. What happens this week at Guantanamo will determine whether Obama’s pledge that the new, revised military commissions can deliver internationally-recognized justice is meaningful: the pre-trial hearing in Khadr’s case will provide the first in-depth examination of whether Khadr’s treatment in U.S. custody amounts to torture; will determine whether prosecutors can use evidence against him acquired under abusive, coercive circumstances that civilian courts would never allow; and whether additional statements made by Khadr in subsequent and less-coercive circumstances are fair game or inextricable from his overall abuse.

On November 7, 2008, three days after Obama won the presidency, Khadr’s military lawyers introduced a motion to suppress evidence commission prosecutors sought to produce that came from Khadr’s interrogations in Afghanistan and Guantanamo Bay. Under the commissions, evidence obtained under torture cannot be used, but the scope of the commissions’ allowance for coercively-obtained testimony remains largely unclear. Since their creation in 2002, the commissions have only produced three convictions, one of which was the result of a plea deal; the Supreme Court has twice ruled that the commissions provide insufficient due process rights for defendants.

Khadr’s attorneys charge that the teenaged detainee underwent over 40 interrogations in 2002 at Bagram Air Field in Afghanistan after being shot and suffering shrapnel wounds in a battle with U.S. forces in July 2002 in the eastern Afghan province of Khost. During those interrogations, Khadr was given limited pain medication; had his head hooded while “interrogators brought barking dogs into the interrogation room”; was placed in stress positions despite his gunshot and shrapnel wounds; and was threatened with rape. After 90 days, U.S. military officials flew him to Guantanamo Bay, where he was again placed in stress positions; had his hair torn out; threatened again with rape; and was even used as “a human mop” by military police after he urinated on the floor of his interrogation room after being placed in stress positions for a prolonged period of time.

Information that emerged from those interrogation sessions — basically, what Khadr told his interrogators while being tortured — comprises a substantial portion of the prosecution’s case against him. It isn’t clear how much of the government’s case against Khadr relies on what he told his interrogators after his abusive treatment. The government will call witnesses who will attest to seeing Khadr throw the grenade that killed Sgt. First Class Christopher J. Speer. (At least one, Sgt. Layne Morris, has come forward in the press.) And the government will probably also seek to introduce statements Khadr made that it maintains were not the result of torture. But Khadr’s lawyers contended in their November 2008 motion that “all statements made by Mr. Khadr subsequent to any statement he made in response to coercive interrogation must also be suppressed as fruit of the poisoned tree,” a legal concept holding that the taint of improperly acquired evidence extends to any secondary evidence it produced.

It’s a crucial question for the military commissions. Every detainee who will be tried before the commissions encountered periods where they were harshly interrogated but then later faced less-coercive interviews, “so this is a real test case for the viability of other prosecutions,” said David Frakt, a lieutenant colonel in the Air Force Reserve judge-advocate general corps who used to be defense counsel for Mohammed Jawad, another juvenile held at Guantanamo Bay. For instance, if Khalid Shaikh Mohammed and the other 9/11 conspirators who were initially held in undisclosed CIA prisons are brought back to military commissions, Khadr’s hearing may determine whether everything they have told their interrogators — even long after being abused — is inadmissible before the commissions. To Jennifer Turner, a human-rights researcher with the ACLU who will travel to Guantanamo Bay to observe the Khadr hearing, if the judge rules that Khadr’s statements to his interrogators can be used against him, “it will show the military commissions under Obama are no different than those under Bush.”

Indeed, it is because of Obama that the issue has remained unsettled. Upon taking office in January 2009, Obama issued executive orders banning enhanced interrogation; vowing to close Guantanamo Bay within a year; and suspending the military commissions while his administration decided how it would deal with the approximately 240 Guantanamo detainees it inherited from the Bush administration. That suspension, coupled with Senator Obama’s objections to the commissions on constitutional grounds, raised hopes among civil libertarians that the administration would ultimately scrap its predecessors’ ad hoc approach to terrorism prosecutions.

Instead, in a May 2009 speech, Obama pledged to reform the commissions, not abandon them. Among the reforms he promised was to “no longer permit the use of evidence — as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods.” By October, Congress passed and Obama signed the Military Commissions Act of 2009. Section 948(r) indeed enshrines the ban on statements made owing to those methods. But it gives judges leeway to enter into evidence “other statements of the accused… only if the military judge finds” that they are indeed voluntary.

And that’s where Khadr’s defense motion comes in. While there have been at least two other pre-trial procedural hearings since Obama opted to retain the commissions, none have had the significance of Khadr’s. There are ten days’ worth of hearings scheduled for the prosecution and the defense to tussle over the motion to suppress and what the Military Commissions Act of 2009 requires for it. The Washington Independent will be at Guantanamo Bay for the proceedings, and will provide frequent reports — in blog posts, stories, photo and video — about what they determine for the future of the military commissions in the age of Obama.

There are at least two additional complicating factors. First is that while the commissions have a new law authorizing them, the military has yet to issue a new manual for officers of the court to understand how the procedures under the 2009 law are to be implemented. “If you go to the website for the military commissions,” noted Air Force Col. Morris Davis, a former chief prosecutor for the commissions, “there is no information on who is heading up the military commissions, no information about a new Manual for Military Commissions that implements the changes Congress made in late 2009, and no information about revised Rules for Military Commissions.” As a result, Davis said, “it appears we’re still trying to lay the tracks after the train has left the station, which is no way to run a railroad or a criminal justice system.”

Maj. Tanya Bradsher, a spokeswoman for the commissions, said that “a revised Manual will be issued shortly,” but added that the manual was less important than the law. “The standards for the admissibility of statements are set out in the Military Commissions Act of 2009, and any procedural or evidentiary rules cannot change the standards set by Congress,” Bradsher said.

Frakt said it isn’t that simple. “The military commission rules of evidence have been substantially changed by the Military Commissions Act of 2009, particularly with regard to the standards to be applied to determining the admissibility of a statement,” he said. “The Manual will have significant additional guidance and discussion, because it’s the implementing regulations for this. It’s possible the judge will gather all the evidence and simply sit around and wait for the Manual to come out before issuing a ruling.” In terms of actually arguing the motion, though, “it’s still unclear what rules apply.”

A second complication is how much detail about Khadr’s treatment a judge will allow the outside world to see. There has never before been a two-week court session to examine, in large part, whether the treatment a detainee suffered in a U.S. facility amounts to “cruel, inhuman or degrading treatment,” the standard in the Military Commissions Act for inadmissibility. “This will be one of the first really in-depth looks into the treatment of detainees in the early days of the war on terror,” Frakt said. “There are going to be a lot of press and observers [at Guantanamo]. It’s going to be a nightmare for the government if they have to constantly close the hearing to talk about things that are embarrassing to the government.”

Davis, the former chief military commissions prosecutor, holds little sympathy for Khadr, whom the government says a videotape shows emplanting improvised explosive devices in Afghanistan. (The video does not implicate him in the death of Sgt. Speer.) But he said his problem was with the Obama’s claim that it needs to keep the options of both federal courts and military commissions to handle terrorism prosecutions, a claim that struck him as both politically motivated and unjust.

“It’s too bad that the Obama administration is back on its heels in a defensive crouch, afraid to go toe-to-toe with the Cheney right-wing fanatics, and continues to try to have it both ways with the option of military commissions and trials in federal courts still in play,” Davis said. “Hopefully, at some point they’ll grow a pair and make a choice, but this double standard where we’ll give a detainee as much justice as we can and still ensure we get a conviction shows how hypocritical we are when it comes to the rule of law. We talk the talk, but we don’t walk the walk.”

Correction: This piece initially stated that there were two plea deals in the military commissions since 2002; there was only one.

Detainees at Guantanamo Bay (The Toronto Star/ZUMApress.com)

If there was any doubt that Republicans in Congress will oppose this year’s push from President Obama to close the detention facility at Guantanamo Bay, Sen. Mitch McConnell’s (R-Ky.) speech Wednesday to the Heritage Foundation ought to have laid it to rest. In the course of a half hour’s worth of invective against the administration’s counterterrorism policies, the Senate minority leader pledged to block funding for any efforts at giving terrorism detainees trials in civilian courts. But he held out a special reverence for the much-vilified locus for military commissions and indefinite detention. “Thankfully, Gitmo is still open for business,” McConnell said.

[Security1] McConnell then turned, briefly, to an argument that is starting to be shared by McConnell’s typical political enemies — and which could seriously complicate the administration’s plans for the final closure of Guantanamo Bay. If Obama simply moves the military commissions and indefinite detentions featured at Guantanamo to a new detention facility in Thomson, Ill. — as the administration currently plans –then there is “no doubt” that al-Qaeda will use Thomson “for the same recruiting and propaganda purposes” it’s used toward Guantanamo, McConnell said, a prospect that “eliminates the administration’s only justification for closing Guantanamo.”

With reluctance, many in the civil-liberties community think McConnell has a point. They have no patience for McConnell’s argument that terrorism detainees should not receive civilian trials. But the administration’s plan to close Guantanamo, from their perspective, merely transfers its most offensive practices to the middle of Illinois. In what they see as a tragic irony, the cohort that led the charge during the Bush administration to shutter the Guantanamo facility is increasingly vocal in opposing Obama’s already-imperiled path to shutting it down.

“What’s the point of simply moving Guantanamo on shore?” said Shayana Kadidal, an attorney with the Center for Constitutional Rights. Chris Anders, senior legislative counsel for the American Civil Liberties Union, said flatly, “We oppose any legislative proposal that links the purchase of Thomson to indefinite detention without charge and the use of military commissions.”

The coalescing civil-libertarian opposition to the Thomson plan now has a legislative target. Robert Hale, the Pentagon’s comptroller, announced on Monday that the $159 billion funding request for next year’s operations in Iraq and Afghanistan will contain a $350 million “transfer fund” for detainee operations that will authorize the administration to “let us open the Thomson, Illinois, site.” Placing the money for buying Thomson from Illinois — a necessary step toward transferring those Guantanamo detainees that will not be tried in federal civilian court to the prison –effectively dares critics to face accusations of not supporting the troops in Afghanistan if they try to block funding for for the Guantanamo closure.

At least one question about Thomson that civil libertarians consider crucial remains unanswered by the Obama administration. The administration has stated clearly that Thomson is designed to house detainees tried before military commissions, as occurs at Guantanamo. But it has been much vaguer about embracing or renouncing the even more contentious prospect of indefinite detention, Guantanamo’s other chief feature.

Last month, a year-long interagency task force on Guantanamo detainees recommended to the White House that the administration ought to continue to hold about 50 detainees indefinitely without charge, claiming simultaneously that there is insufficient evidence to convict them before either civilian or military courts but that their release would jeopardize national security. An administration official who would not discuss ongoing deliberations on the record said that the National Security Council is still reviewing the task force’s recommendations. “You should not consider them already accepted,” the official said, but cautioned that there is no timetable for formal adoption, rejection or modification of the recommendations, since “detainees’ status’ could change, based on the status of their habeas case [or] the situation on the ground in a receiving country” to which the detainees’ might be transferred.

With the arrival of a funding mechanism for Thomson on Capitol Hill, that vagueness leaves the civil liberties community unable to say that the administration has ruled out holding detainees indefinitely without charge, a bedrock principle of every civil libertarian organization, and unable to distinguish Thomson’s planned activities from Guantanamo’s objectionable ones. “If all we’re doing is exporting Guantanamo to Thomson for purposes of military commissions and indefinite detention,” said Virginia Sloan, president of the Constitution Project, “we’re very strongly opposed to that.”

Devon Chaffee, who handles national-security issues for Human Rights First, cautioned that the contours of the Thomson legislation were not yet fully defined. But, she said, “Human Rights First will continue to oppose indefinite detention without trial and the use of a flawed military commission procedure regardless of where it’s implemented. As long as the U.S. continues those policies, it will fail to overcome the policy mistakes that made Guantanamo a stigma. Those are two positions of ours that are not going to change.”

As a result of the administration’s vagueness about continuing to hold detainees at Thomson indefinitely without charge, the $350 million funding vehicle could unite liberal congressional opponents of indefinite detention with conservative congressional advocates of it. And the Obama administration does not have much legislative margin for error, even on a request as normally politically sacrosanct as war funding. Like with the defense budget overall, the Iraq and Afghanistan money for next year, formally known as the Overseas Contingency Operations Fund, must be authorized by the Senate and House armed-services committees before the formal appropriation is taken up by the Senate and House appropriations committees, all preceding full votes before the Senate and House. Republicans in the Senate proved willing in December to filibuster the defense appropriations bill in a failed bid to stop Obama’s health-care reform package. A potential alliance of convenience between Republicans who want to keep Guantanamo open and liberal Democrats who want to prevent Thomson from becoming a new Guantanamo could jeopardize the measure’s passage.

Anders said that if the Thomson plan was “reconfigured for the pre-trial detention and post-conviction sentencing of people tried in [federal] courts we might very well take a very different position,” holding out the prospect of the administration earning civil libertarian support by shuttering both Guantanamo and its policies. But, he added, “that’s not how it’s being set up.”

That isn’t a consensus position among civil libertarians. David Remes, a lawyer for several Guantanamo detainees and the executive director of the Appeal for Justice, a human-rights legal practice, said he opposes Thomson under any circumstances. “Number one, I oppose preventive detention in principle, and number two, I don’t see how spending a lot of money to change the zip code moves the ball forward,” Remes said. “I’m not in favor of moving anything to Thomson. There really is no difference between being tried in Gitmo North versus Gitmo South.”

Nor has the civil libertarian community been consulted on the plan, a position that many consider to have effectively cut off the administration from potential outside messaging surrogates. “The community has been frustrated working with the administration on this because we’ve been available and more than willing to help defend policies we think are the right ways to close Guantanamo,” Sloan said. “They haven’t really done that here. We feel we’re behind the eight ball.”

Shuttering Guantanamo within one year was among of Obama’s first pledges in office. But the deadline slipped after numerous congressional missteps, including a dramatic Senate vote in May, embraced by 90 senators, to prohibit funding to “transfer, release, or incarcerate” Guantanamo detainees in the United States. Sen. Harry Reid (D-Nev.), the Democratic leader, insisted then that the vote was mostly symbolic and any administration plan to close Guantanamo would receive careful Senate consideration.

But the opposition to the administration’s plans for closing Guantanamo is increasing, even among those who ultimately want the U.S. to be rid of all forms of indefinite detention. Anders said that for the ACLU, “The goal has never been changing the geography. The goal is to close both Guantanamo and the policies that are problematic there — the use of military commissions and indefinite detention. Transferring those policies to Thomson is something we oppose.”

The detainee headed for Hungary is identified only as being “from the West Bank.” The Justice Department said that the government of Hungary wanted his identity withheld for security and privacy purposes.

The detainee transferred to France is Sabir Lahmar, a native of Algeria. In November 2008 Lahmar won his petition for habeas corpus in a federal court, which ruled that he could no longer be lawfully detained and ordered the government to arrange for his release.

The two detainees transferred to Italy are Abel Ben Mabrouk bin Hamida Boughanmi and Mohammed Tahir Riyadh Nasseri, both of Tunisia. Both were cleared for release by the government’s Guantanamo Review Task Force.  Both are the subject of outstanding arrest warrants in Italy, where they will be prosecuted.

Approximately 210 detainees still remain at the U.S.-run detention facility at Guantanamo Bay.

The report finds that although many immigrants have not committed crimes, they’re held in secure facilities designed for criminals and often in far more restrictive conditions than necessary. They also often don’t have sufficient access to medical and legal assistance while in custody.

The reforms announced today by DHS Secretary Janet Napolitano and Immigration and Customs Enforcement Assistant Secretary John Morton involve primarily centralizing control of the detention facilities under ICE headquarters’ supervision; classifying immigrant detainees according to their risk level and housing them accordingly; improving detainees’ access to medical and legal services; and increasing supervision of the facilities by federal employees rather than by private contractors.

Longtime critics of the agency’s detention practices are not completely satisfied, however, noting that DHS’s proposals fail to include a way to ensure that the agency complies with improved standards, that immigrants aren’t unnecessarily locked up, and that innocent people aren’t harassed by local authorities empowered to enforce federal immigration law.

As Judy Rabinovitz, deputy director of the American Civil Liberties Union Immigrants’ Rights Project, put it in a statement released yesterday, “Meaningful reform of the system must focus not only on the conditions under which immigrants are being detained, but on why they are being detained in the first place — often for prolonged periods of time — when other forms of supervised release would be sufficient to address the government’s concerns, as well as the need for basic due process.”

Linton Joaquin, general counsel for the National Immigration Law Center, called the proposal “a step in the right direction” but said that “as long as these standards are not enforceable, the rights violations faced by the men and women in these systems will persist.”

Lawyers have been making that argument for years now, but the United States has insisted that the prisoners at Bagram have no right to challenge their detention in a U.S. court. The Obama administration recently appealed a federal court’s ruling that some of the prisoners do indeed have that right.

Now, notwithstanding any constitutional concerns, Maj. Gen. Doug Stone is reportedly recommending that the United States completely revamp its detention policy in Afghanistan, focusing on rehabilitating rather than simply imprisoning the detainees. He also acknowledges that the vast majority of the men held at Bagram were likely swept up in raids yet had not engaged in hostilities against the United States.

As I’ve written before, many of the prisoners at Bagram have been held there for six or seven years without charge or access to lawyers. Stone worries that imprisoning them without charge or an ability to defend themselves for years will turn them into hardened anti-American radicals.

Stone’s 700-page report is not yet available, but he has reportedly briefed senior U.S. officials on his findings, including the top commander in Afghanistan, Gen. Stanley McChrystal; Ambassador Richard Holbrooke, special envoy for Afghanistan and Pakistan; and Secretary of State Hillary Rodham Clinton. Stone earlier helped revamp the prison system in Iraq.

McChrystal is expected to address the issue of detention facilities in an assessment of Afghanistan due within the next few weeks.

In April, DHS responded to the Freedom of Information Act lawsuit with a “comprehensive” list of all deaths in detention, which totaled 90 people. Today, the agency said it realized it had overlooked 11 more. The government has now admitted to 104 deaths of immigrants in detention since 2003.

“Today’s announcement confirms our very worst fears,” said David Shapiro, staff attorney with the ACLU National Prison Project, in a statement. “For too long, the system of detaining immigration detainees has been devoid of transparency and accountability. This forces us to question even further whether there are still more deaths that somehow have gone unaccounted for.”

The Obama administration recently announced a new plan to improve the conditions of immigration detention, including strengthening federal oversight of the sprawling system that now houses about 32,000 detainees across 350 local jails, state prisons and contract facilities.

The Obama administration announced plans Thursday to overhaul the nation’s much-criticized immigration detention system by strengthening federal oversight and centralizing a 32,000-bed system now scattered throughout 350 local jails, state prisons and contract facilities, officials said.

The goal in three to five years is to redesign and begin rebuilding a system that houses immigration violators in fewer locations, closer to major cities with access to courts, attorneys and medical care, and under conditions that more consistently meet federal detention standards, said John Morton, director of Immigration and Customs Enforcement. [...]

The moves mark a repudiation of the immigration policies of President George W. Bush. Beginning after the 2001 terrorist attacks and accelerating as Washington took a “get-tough” approach to illegal immigration, ICE’s detention system exploded in a multibillion-dollar build-up, more than tripling in size over the past decade as the federal government geared up deportations.

Some of the specifics:

Morton will assign a federal manager to each of 23 of ICE’s largest detention centers. He is creating a new Office of Detention Policy and Planning, headed by Dora Schriro, a former state corrections official in Arizona and aide to Napolitano, to lead the overhaul. The office will work with two advisory boards including immigrant advocates focused on detention policies and health care, the official said.

ICE’s Office of Professional Responsibility will set up a detention oversight office that will report directly to Morton.

ICE also announced that it will stop sending families to the T. Don Hutto Residential Center near Austin, Tex., a 512-bed former state prison. The Bush administration highlighted the family detention facility as a symbol of its immigration crackdown efforts, but it became a lightning rod for litigation over the government’s treatment of children.

ICE will instead begin moving families to an 84-bed former nursing home in Pennsylvania, the Berks Family Shelter Care facility, and explore detention alternatives, Morton said.

Amnesty International has issued a statement praising the overhaul, but cautioned that it did not go far enough:

The 2009 detention reforms are a much-needed first step to address the myriad problems that have plagued the U.S. detention system for years.

Still, every day ICE attorneys make arbitrary decisions to detain immigrants who pose no flight risk, pose no threat to this country, and who should not be detained in the first place.  Just this week Amnesty International researchers met a refugee who remained in detention for more than two years, even though an immigration judge had twice decided that he cannot be deported. These scenarios are not anomalies, and ICE must address them as they continue to examine an immigration system that is broken, dysfunctional and needlessly tears apart families.