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Closure Of The Guantanamo Bay Prison Camp

Speakers: Daniel B. Prieto, Adjunct Senior Fellow For Counterterrorism And National Security, Council on Foreign Relations, and Matthew C. Waxman, Adjunct Senior Fellow For Law And Foreign Policy, Council on Foreign Relations
Presider: Robert McMahon, Deputy Editor, CFR.org
February 6, 2009
Council on Foreign Relations

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ROBERT MCMAHON:  Thank you.  Good morning.  And thank you, everyone, for joining us on this Council on Foreign Relations conference call.  I'm Robert McMahon, deputy director of cfr.org.  And we're here to discuss the implications of President Obama's decision to close the Guantanamo Bay prison camp, and are very fortunate to have two Council experts with special insight on Guantanamo Bay and broader issues of detention, interrogation and civil liberties in the -- in a context of counterterrorism policies.

We have Daniel Prieto, who is CFR Adjunct Senior Fellow for Counterterrorism and National Security and author of a freshly released report, just moments ago, of a CFR working paper titled, "War on Terror:  Civil Liberties and National Security After 9/11" (sic).

We also have Matthew Waxman, CFR Adjunct Senior Fellow for Law and Foreign Policy, a law professor at Columbia Law School and former deputy assistant secretary of Defense for detainee affairs.

We're very happy to have both of you on the line with us today.

MATTHEW C. WAXMAN:  Great to be here.

DANIEL B. PRIETO:  Great to be here.

MCMAHON:  So I will kick things off with questions for both of our experts today and then open right up to get the reporters.  I know we have a number of you on the line today.

And I should mention from the start, this is not going to be a debate about the merits of closing Guantanamo Bay, per se; both of our guests agree with the -- that this is a good policy; but it's, going forward, what comes next.

And I guess I'd like to start with Dan, who is the author of this newly released report looking at both Guantanamo Bay and the -- and broader issues, to say -- to get a sense of, first, how has this policy regarding Guantanamo Bay been damaging to U.S. foreign policy?

PRIETO:  First of all, Bob, thanks for having me today, and thank you to all the reporters.  Just want to clarify:  The title of the report is "War About Terror," as distinct, clearly, from "war on terror."  So just want to clarify that.

And I think what's apparent in the title is how rancorous and intense the debate has been between the United States and the rest of the world, inside the United States, and certainly in the media.  And that has made U.S. counterterrorism policy quite vexed over the last number of years.

To Bob's question in particular, Guantanamo itself -- the existence of it over time became the focal point for errors, overreach, missteps in counterterrorism policy for the Bush administration.  And one thing the report shows is that the effects of it were more than just (optical ?) or reputation, but actually had direct effects on our counterterrorism policies, making them brittle and making the United States less safe in the world, in terms of serving as propaganda and an active recruitment tool for terrorists and really inflaming public opinion around the world.

It both made it more difficult for countries that wanted to work with us -- it made it more difficult for them to work with us, because they had to deal with public perception ramifications at home, but it also served as an easy aid for recruitment and also served to misconstrue -- or allow U.S. policy to be misconstrued as a war against Islam.

MCMAHON:  Daniel, your paper notes that the Obama administration's orders to close the detention facility at Guantanamo Bay -- and -- it cites them as an important gesture of goodwill to engender abroad and so forth.  But you also -- throughout the piece, you note that there -- the conflict of al Qaeda is still legitimately described as a war that -- which, you know, implies it's an open-ended -- sort of an open-ended engagement.  Could you elaborate on what that means for then setting policy, this tension, perhaps, between this, you know, war rules and criminal rules?

PRIETO:  It's one of the largest debates around U.S. counterterrorism at the moment.  And I think a lot of the discussion has centered around how the Bush administration treated it as a war on terror.  The Obama executive orders go very far in terms of signaling a clean break with Bush administration counterterrorism policies.  But I think it's worth observing that, at the same time, there is significant consensus in the United States that the fight with al Qaeda has many components that are legitimately treated as war.

And in many cases, that wasn't just the Bush administration.  If you look at the congressional authorization for the use of military force, it treats the conflict with al Qaeda as war.  And based on that, the president took certain moves.

I think the point, however, is that not all aspects of our counterterrorism policy can be treated in the rubric of war.  We need to come up with a mix.  We need to use more aspects of criminal law.  And we certainly need to do a better job of making sure that civil liberties and protection of human rights are of co-equal importance in our policies as they are crafted.

Certainly I think the United States leaned hard one way, but one thing -- another thing people overlook is that over the last number of years, congressional and Supreme Court pushback had gone quite far in ameliorating many of the worst aspects of counterterrorism policy under the bush administration.  And so while the Obama moves mark a clean break, at the same time they leave many open issues, and at the same time I think President Obama acknowledge that many of our aspects of the fight with al Qaeda do qualify as war.  I mean, in his first week in office, in addition to these executive orders, there were airstrikes in Pakistan against terrorist targets.

MCMAHON:  Matthew, you have made some similar points, you know, basically saying since the Obama orders were given that this is right but in fact maybe just -- this is just the easy part and now we get into the nitty-gritty work.

WAXMAN:  That's right.  I mean, the debate -- the public debate has really shifted from the issue of whether to close Guantanamo to how.  And that's a good thing because the "how" questions are both more important -- are more difficult but also, I think, in many ways more consequential, especially because the issue of detention -- capture, detention and interrogation of terrorism suspects is going to continue for some time, a long time.  It's not just about what do you do with the 245 individuals remaining at Guantanamo, but what do you do going forward about individuals who, as Daniel says, form part of a broader fight on a global scale that has some attributes of war and some attributes of crime but doesn't fit neatly into either legal box.

And I agree completely with Dan that on the one hand, the Obama administration's executive orders -- in particular the one regarding the closure of Guantanamo -- mark a very emphatic break with Bush administration policy, but also, at least for now, leave in place much of the legal framework, in particular the idea that individuals, at least for now, can continue to be held as enemy combatants as opposed to criminal suspects.  And the Obama administration's executive order is -- leaves open a range of options for how it's going to detain terrorism suspects once Guantanamo is closed.  And I think that's a good thing.  I think it would be premature to close off options.

MCMAHON:  And so it sounds like there are some trial and error and certainly some checks and balances in Congress and the courts.  Certain things seem to be moving in a direction of -- where there's a bit of -- some legal consensus, at least.  Could you talk about, being inside the process a little bit, what maybe has been done right, certain things that the Obama administration can build on or that you would recommend they build on, whether it's the way the military commissions have been erected, or something like that?

WAXMAN:  Yeah.  I mean, I guess I could make a couple of points on that.  One of them is -- well, I should begin by saying, while the Obama administration has not been clear about how it's going to close Guantanamo, I think some elements of its program for doing so are already pretty obvious.

One of them is it will continue diplomatic efforts to try to release or transfer those detainees, especially those who are deemed at the lower end of the dangerous spectrum -- efforts to release or transfer them to home countries or third countries who are willing to take them and can offer adequate assurances that they will both mitigate their continuing terrorism threat and to respect their rights concerning treatment and protection from torture.

Another aspect of the plan for closing Guantanamo will undoubtedly be a review of the remaining detainees, especially those who are deemed most dangerous or who are directly linked to the 9/11 or other attacks on the United States -- review them to see which of them can be prosecuted in federal criminal court.

And I think the Obama administration is likely to break from the Bush administration in really emphasizing federal criminal prosecutions as sort of the preferred outcome, because one of the lessons -- to get to your question -- one of the lessons of the Bush years is that credibility and legitimacy of the legal process through which detainees are put is not only important from a rule of law perspective but also from a strategic perspective; that ultimately the United States has a strategic interest, a national security interest in promoting certain rule-of-law principles and in demonstrating the durability and legal consistency -- legitimacy of its -- of its counterterrorism policies in order to garner greater international cooperation in continuing counterterrorism operations.

MCMAHON:  Meanwhile, we had a reminder yesterday of the CIA's role in sort of the detention question as well, with the confirmation hearing of Leon Panetta for CIA director.  He said -- and under the rules issued by President Obama -- the CIA can still detain and question terrorism suspects before transferring them to military jails, that the agency would continue the Bush administration practice of rendition.  But he said the agency would refuse to deliver suspects into countries known for torture or other actions known, quote, "that violate our human values."  That all seems similar to Bush administration policies.

WAXMAN:  Well, it certainly is similar to the Bush administration policy.  I think the real question is what kinds of -- what kinds of safeguards are put in place to ensure that individuals, if they are transferred in these ways, don't end up being transferred to countries where torture or mistreatment is likely.  I mean, I think that's -- what you stated, this idea of not transferring individuals to countries where they're -- where they're likely to face torture is both existing policy and the law.  And so it's natural that the CIA nominee would talk about continuing to respect those basic principles.

I think what's interesting about Panetta's comments is that he seems to be, as I said before, consistent with Obama's executive orders, maintaining a certain amount of flexibility.  The Obama administration wants to on the one hand mark a very clear and clean break from Bush -- past Bush administration policies, but also leave itself some flexibility to craft appropriate responses to what, really, are very difficult national security problems that don't fit easily into nice, clean legal categories.

MCMAHON:  I want to take up that point with Daniel now, in a final question, before I open it up.

Daniel, to this question of flexibility, this word gets used a lot.  You mention in your paper that, quote, detention efforts have often seemed haphazard, with ad hoc reliance on selective aspects from each body of law.  That seems to be one way that flexibility is used, or maybe abused.

PRIETO:  I think, in general, there is a risk in that kind of flexibility.  But at the same time, let me pick up on a couple of things Matt said.  I think, first of all, the one other area of consensus among folks is, when the United States decides to release folks from Guantanamo, not only does there need to be a very specific review of each individual case, and what kind of danger that person may or may not pose, or what is the strength of the material we have to potentially prosecute them in federal criminal courts -- not only is there an evaluation of the case, but there also needs to be a very strong evaluation of the country that might be receiving the person.  What is their ability, if that person presents some continued danger, to provide security to the U.S. by holding them for us, potentially?  Or if they're being released to that country and are not viewed as dangerous, what is the ability of that country and the confidence we have that they will not mistreat them?  So that is another level of evaluation that I think there's fairly common ground on.

Picking up on this notion of the Obama orders, it is interesting, and Matt notes this, and CIA nominee Panetta did, as well.  President Obama may have preserved flexibility to allow tougher techniques than those used in the Army Field Manual.  And again, I think this is simply a recognition of emergency situations that may be unforeseen.

While on the one hand, it remains open to see where he lands on this stuff regarding CIA techniques, he has sent a very clear message about what the U.S. law is, that we will abide by Geneva III, that torture is not allowed.

Even with those very clear statements, I think it's smart of President Obama to preserve a certain amount of flexibility.  But I actually think he should work with Congress and go further, to embed Congress in a process by which, if he decides that there is some exceptional circumstance in the future, that the CIA may have some techniques available to it that are not in the Army Field Manual.

Now, certainly those techniques should not veer into any area that is considered breaking the law, or certainly it should not veer into the area of torture.  But at the same time, if President Obama maintains some flexibility, I think a couple of things should happen.

I think Congress should go a step further, and actually go beyond the executive order and put the CIA treatment guidelines and requirements into law.  And further, if the president decides that he does need special circumstances in the future, he needs to create a process that fully embraces collaboration with Congress.  Congress should be fully informed, congressional leadership should be fully informed, when he makes those decisions on a case-by-case basis.  And I think the president should have to put forth presidential findings justifying any deviation from what at that point would hopefully be CIA treatment guidelines embedded in the law.

MCMAHON:  So better collaboration domestically, and better coordination internationally with partners on this.

PRIETO:  Yes.

MCMAHON:  We're speaking to CFR Adjunct Senior Fellow Daniel Prieto, who is the author of a new report, "War About Terror:  Civil Liberties and National Security After 9/11"; as well as Adjunct Senior Fellow Matthew Waxman, who is a former deputy assistant secretary of Defense for detainee affairs.

We're going to open this up now to our callers.  Operator, please let us know who's on the line next.

OPERATOR:  Thank you.  Ladies and gentlemen, at this time, we will open the floor for questions.  If you would like to ask a question, please press the star key, followed by the 1 key on your touch-tone phone now.  Questions will be taken in the order in which they are received.  If at any time you wish to remove yourself from the questioning queue, please press star-2.  Once again, to ask a question is star-1 on your touch-tone phones now.

MCMAHON:  I'd like to add that in the meantime this report can be accessed online at www.cfr.org/war_about_terror.  That is where the report can be accessed online -- www.cfr.org/war_about_terror, for those who want to read along while we're doing the conference call.

In the absence of an initial question, Matthew, I wanted to ask about something that you'd brought up in, I think, some previous interviews, fairly recently, when you mentioned that some of the big debates internally,I guess, in the Bush administration had shifted from treatment standards to legal process, by -- sort of by the end of the Bush administration.  So this sort of reiterates that the consensus -- you know, that the treatment standards -- maybe there might be more consensus than about the prosecution aspects.

WAXMAN:  I think that's right.  I mean, the -- you know, after -- certainly if you go back to 2004 and the explosion of the Abu Ghraib crisis, the real focus at that point -- I would say the dominant focus of public scrutiny and debate was on treatment standards.

And today we've seen, I think, that focus of debate really shift to the issue of legal process.  And I think there are a couple of reasons why we're seeing that shift in emphasis.  One of them is because treatment standards have improved.  The law has evolved since then.  Most notably you've had Congress enacting the Detainee Treatment Act of 2005, which establishes a blanket prohibition on cruel, inhuman and -- or degrading treatment by any U.S. personnel.  You also have the Supreme Court in the Hamdan decision in 2006 clarifying that Common Article 3 of Geneva Conventions -- in other words, the minimum baseline treatment standards of Geneva also apply even to so-called unlawful enemy combatants or al Qaeda suspects in U.S. custody.

So the law has in -- I think there have been remedies to a legal problem on the treatment side.

What remains now, I think, as the dominant issue is to what legal process are the detainees entitled.  And this has become, I think, an issue of sharper focus for a few reasons:  one, because the longer detainees remain at Guantanamo or in other detention facilities, the more concern you see about the prospect of indefinite detention, also because this issue of legal process is really going to be critical to how you close Guantanamo and what you do with detainees going forward.

I think Dan -- I want to just reiterate -- you know, Dan listed a number of what I agree ought to be some minimal -- minimum features of any legal process going forward.  One of them is robust judicial review, which I think is critical to the kind of credibility and legitimacy that I was talking about before, and a greater level of transparency than we saw at Guantanamo in the review processes under the Bush administration, which I think quite predictably and justifiably sowed some skepticism among the public, both domestically and internationally, that good decisions were being made about who was detained and who was released.

MCMAHON:  Thank you.

Operator, do we have any questions to turn to at this point?

OPERATOR:  Yes, sir, we do.  Our first question will come from Isabel Piquer from Publico.

QUESTIONER:  Isabel Piquer from -- correspondent of the Spanish newspaper Publico.  I have two questions.

One, regarding the decision of the Pentagon, to drop all the charges against al-Nashiri, I think, this sums up all the legal problems that they're going to face, lots of detainees in Guantanamo.  Especially because Nashiri; the CIA has acknowledged to torture Nashiri.

So I would like to know, what do you think would happen, in this particular case, especially if they drop the charges?  Would they have to start the whole thing?

And the second question is more a logistical question.  What -- where would the prisoners should go, I mean, if they decide that the core of detainees should be processed in the federal system or any other system?  I mean, should they stay in Guantanamo?  Should they go to other prisons in the U.S.?

MCMAHON:  Matthew, why don't you start off with that?

WAXMAN:  Sure.  The first question concerned a detainee named al-Nashiri, who was, I believe, a Saudi charged with the USS Cole bombing back in 2000.  And it was just reported that charges against al-Nashiri, in the military commissions system, criminal charges, have been dropped.  I don't actually know the details.  I've just seen very brief reports on this.

So I can't really comment on what was underlying the decision.  But I would just say more broadly that as the Obama administration looks to prosecution, especially federal criminal court prosecution, as its preferred option for handling the most dangerous detainees, it's likely to face a number of obstacles.

Some of these obstacles may be surmountable, but a number of obstacles that will make prosecution difficult.  These include, in some cases, the need to protect sensitive, classified information.  In some cases, it will involve the difficulty of securing necessary witnesses for trial.

In some cases, it may even be that some of the evidence the government would like to use has been tainted by mistreatment at the hands of U.S. or foreign interrogators.  We saw that also in the case of detainee al-Kahtani, whose -- the charges against whom were also dropped by the head of the military commissions system.

So there are a number of obstacles the Obama administration will face, as it tries to move cases into the criminal justice system.  And it may find criminal prosecution to be more difficult than, I think, many advocates of that route would hope.

In terms of your second question, on where the detainees would go, I think, it's likely that if the Obama administration is going to stick to its one-year deadline, it's likely going to have to move detainees into military detention facilities inside the United States.

And that's going to be a difficult political issue, because I think there are very few state and local political leaders who want the detainees moved to facilities in their home districts.  And I think that will be again a difficult political issue for the Obama administration to manage.

PRIETO:  If I can pick up on that a little bit on a couple items.

MCMAHON:  Go ahead, Daniel.

PRIETO:  In terms of where folks get tried, Matt focused on the difficulties of potentially bringing many of these cases to criminal trial.

The discussion that's out there, what happens if they can't be brought to criminal trial, there are a number of options.  And at this point, this is really the crux of much of the debate, on how to process folks that it's clear that they can't be released upfront or that may have difficulty being prosecuted in criminal courts.

Interestingly if you look at the Obama orders, he has temporarily suspended the military commissions.  And it suggests that there is a high desire to close them.  But there may be instances where military commissions, certainly they've been tainted by how they were created.  And it's certainly bad optics around them.

But as a matter of law, military commissions may remain open.  And if the president were to decide to keep some of those continuing, it would make sense to address some of those optical issues by increasing procedural protections and transparency and evidence rules if he were to keep some military commissions continuing because it would be difficult to bring those cases to criminal courts.

Other options include using courts martial, which is the military body of justice, moving from military courts to courts martial.  That is a much more robust and long-standing venue and therefore could have more credibility than military commissions.

And finally, the option of national security courts.  This has been a really difficult conversation inside the United States.  And these would be sort of a hybrid, including certain aspects of processes related to the rules of war, and certain aspects related to criminal trials, and would be sort of a hybrid body that could attempt to deal with some of these special cases.  But if you went with national security courts, that would require real work by Congress to get those established.

In terms of where people are held, Matt is certainly right; if there were some period where it wasn't clear where to put them, one would have to consider the possibility of bringing them into the United States.  And there are two options, I think, inside the United States.  One is military prisons, but as well, again, the legalities would need to be figured out.

But the United States currently holds a number of terrorists who were convicted in terrorist criminal trials in the United States, maximum security federal prisons.  Ramzi Yousef and Mohammed Salameh from the 1993 World Trade Center bombings; the blind sheikh, Omar Abdel Rahman, and Mohamed Saddiq Odeh, who bombed the U.S. embassy in Kenya, are in federal maximum security prisons in the United States.  So that's another option, potentially, for facilities.

MCMAHON:  Thank you very much for the question.

Another question, operator?

OPERATOR:  Thank you.  Our next question will come from Andrea Murta  from F-O-L-H-A.

QUESTIONER:  That's Folha, Folha de Sao Paulo.  It's a Brazilian newspaper.

I was wondering if you could comment a bit further on the difficulties that the path chosen by the Obama administration faces inside the Pentagon.  It seems -- or at least it was publicized that there is some hesitance, generals and commanders there that are not still satisfied with the decisions and that it may prove a problem for Obama, or at least oblige him to negotiate more when proceeding with transferring prisoners or suspending the military courts.  That was seen with the case of al-Masri.  A military judge refused to obey Obama's order at first.

So I'd like you to address that a little bit.  Thank you.

MCMAHON:  Matthew, could you take that, please?

WAXMAN:  Sure.  If I understood correctly, it was -- at least the first part of your question concerned perhaps resistance from inside the defense establishment, including the military, to some plans to close Guantanamo.  I think that probably depends very much on how Guantanamo is closed.

But I don't think anybody should have any doubts that all options to close Guantanamo carry some risks.  There's no risk-free option here.  And many of the detainees who would be transferred or released to their home countries would be done so knowing that those individuals continue to pose a risk of returning to terrorism.  When I worked at the Pentagon, one of the big priorities was to try to transfer many detainees to their home countries who would take responsibility for them in ways that would mitigate the continuing threat.

In some cases that's been effective; in other cases it hasn't.  We've -- we -- there is good evidence indicating that at least some detainees who have been returned to their home country have returned to terrorist activity, including, even, reconstituting al Qaeda cells.  So, you know, there certainly is some risk that goes along with any option for closing Guantanamo.

MCMAHON:  Daniel, did you want to weigh in on that?

PRIETO:  No, not at this time.

MCMAHON:  Okay.  Operator, could we have another question, please?

OPERATOR:  Yes, sir.  Our next question will come from Chris Stephens, Scotsman Newspaper.

QUESTIONER:  Yes, I'd like to ask both of your opinion on -- I mean, what do you do with the residuals?  Some can be -- some of these people can be let go to third countries, and Denmark and people like that will take them.  But presumably you're going to end up with a group of people who can't be tried for anything and have to be let go.  And then you presumably have to resettle them in the United States.  And, you know, this may be a hundred or so people.  Well, is there a risk that, you know, two or three of these people may decide to -- you know, to become terrorists, basically?  And then you've -- you know, you've got to watch them, because you're -- you know, they could attack wherever they are in America.

MCMAHON:  Daniel, why don't you start off with that one, please.

PRIETO:  You know, I think we've covered a lot of the options.  As Matt points out, as -- the teams that are reviewing these cases sort of go through them one by one.  They -- there really is no silver-bullet answer.  I mean, it's a Chinese menu of options:  again, other countries; inside the United States; countries of origin.  And then there's also the procedural questions in terms of where they might be tried.

You know, I don't have as much insight as Matt into some of these specific cases, but this is the challenge for Obama.  I do think you'll end up having to really wield diplomatic efforts to really change the game.  And I think the new Obama administration really does potentially change the game in terms of other countries' willingness to work with us.  So that will take a tranche out.  And then, I think, another set -- and this will be a very difficult set -- could move to criminal trials.  I think there will be some set that may very well remain in military-commission or courts-martial type of bodies, given the review of evidence, and it looks like you won't be able to take them to criminal trial.

There's certainly been an interesting discussion about a set of detainees, the Chinese Uighurs, who've been at Guantanamo and have been deemed releasable.  And there is a lot of media in the Washington, D.C., market about the Uighur community here receiving those people, given that there was no good place to put them.  I think the fear of sending them back to China obviously had to do with human rights and their treatment were they to return.  I think historically there are also maybe a half dozen Uighurs who were -- and Matt, correct me if I'm wrong -- but sent to Albania, in a sort of sad story where they're now there and have no community ties or relationships and can't find jobs.

So those are the tough questions.  I do think there's a lot of -- and, as Matt pointed out, it will be very difficult to put some of these folks in the U.S.  But if one could really convince oneself that they are releasable and safe, the United States will have to make the case not only to a potential third-party receiving country but also make the case with certain ethnic communities in the United States and certain geographies in the United States that might receive them.  But as Matt said, there is risk in all of that.  And I don't think there is any easy way -- or even any way to completely mitigate that risk.

Matt, if you have any (ideas ?).

WAXMAN:  Yeah, I would just say that, you know, the question is what do you do with those who can't, on the one hand, be prosecuted or, on the other hand, be transferred back to their home country because of treatment concerns there.

First of all, I would divide that question into two parts, because one set of cases might involve those who are found to be of virtually no risk, right, individuals who were cases of simple mistaken identity who were detained erroneously.  I want to suggest that that category, at least of those who are remaining at Guantanamo is likely to be quite small.

There are a number of detainees who have been approved for release because they were found not to be -- not to qualify technically as enemy combatants.  In other words, it couldn't be shown -- at least to the necessary standard of proof -- that they were -- that they were actively fighting against the United States when they captured, but that's not to say that they might not have received training or participated in al Qaeda-related activities, et cetera.

So that brings you to the second category of individuals, who are deemed perhaps not so dangerous that the United States feels the need to continue to detain them but who continue to pose some residual risk.  Those will be very difficult to convince other countries to take.  I do think the Obama administration is going to be riding a wave of diplomatic goodwill that may help convince some other countries to take those individuals, but I think that will be -- I think there's a very difficult road ahead for the Obama administration in that regard.

And I would just end by suggesting that ultimately, in cases like the Chinese Uighurs, it's going to be very difficult for the United States to convince other countries to take some of them in if the United States is not willing to do so itself.  And I think probably the only way to break the diplomatic logjam is going to be for the United States to agree to resettle some of the -- at least some of the Uighurs inside the United States.

MCMAHON:  Thank you for that question.  Operator, do we have another question?

OPERATOR:  Thank you.  Our next question will come from Kenneth Jost, CQ Press.

MCMAHON:  Go ahead, please.

OPERATOR:  Kenneth, are you there?  Do you have your phone on mute?  Would you please unmute it now?

MCMAHON:  Okay, we'll take --

OPERATOR:  Okay, well, then the next question from Jim Rowley, Bloomberg News.

QUESTIONER:  The members of Congress and human rights groups have been calling for a reckoning about what happened during the Bush administration, in terms of excessive force used in -- or torture in interrogations and also detention conditions.  And the Bush administration certainly has resisted this and notably in the courts -- there's going to be this case next week before the 9th Circuit where the Bush administration has asserted the state secret doctrine to quell one of these lawsuits.

To what extent should the -- do you think that Obama administration should or would depart from those restrictions that the Bush administration has tried to put on the political debate?  And do you think that political debate is healthy and necessary?

MCMAHON:  Daniel, you want to start off with that, please?

PRIETO:  Sure.  The crux of the question -- in terms of the Obama administration moving away from a level of secrecy that many believe, and I think rightly so, characterized a lot of the policy development and activities of the book administration -- I think the break is pretty clear.  And we talked about this earlier in the conversation.

I think U.S. counterterrorism policy is more durable, more credible, more legitimate; it is less brittle, less prone to overreach, less prone to abuse, less prone to scandal when the policy is developed -- for all its national security sensitivity -- when the policy is developed in collaboration -- better collaboration with the Congress, in better collaboration with international allies and with more transparency and more light of day.

I think one of the things that was missed, given the heated and often scandal-ridden nature of the counterterrorism news after -- over the last several years -- you know, counterterrorism policy, whenever it came into the news, it tended to be surrounded by such a high level of controversy that I think it robbed the country, robbed the United States, robbed the international community, with the U.S. playing a leadership role, of serious questions about the real difficult aspects of counterterrorism policy and how to craft it in a way where there was more consensus and even where there were difficult issues, to the extent difficult choices had to be taken, where accountability was shared and not just held in a unilateral way at the level of the executive branch and at the level of the White House.

So I certainly think the signals are there.  I certainly think this is the way forward.  You can call it phase two, if you want, of the development of U.S. counterterrorism policy, but I do think that sort of level of secrecy has to lift somewhat and the level of transparency has to rise.

At the same time, these are national security issues, and I think President Obama and his appointees will be very pragmatic about which aspects, you know, need to obviously closely guarded.  But I think they'll do a better job of having robust and healthy discussion throughout officials inside the administration, as opposed to holding it close in a smaller cadre of people, and have a better, more healthy and robust discussion with the Congress and the American people.

MCMAHON:  Matt, do you have something to add on the domestic debate?

WAXMAN:  You know, time is running short.  Maybe be we should just go on to the next one.

MCMAHON:  Certainly.  Operator, another question, please.  (Pause.)  Hello, Operator.

OPERATOR:  Yes, sir.  One moment.  Thank you.  Our next question will come from Maria Cametto (sp), from Il Riformista.

QUESTIONER:  Yes, sir, from the Italian daily Il Riformista.  Talking about involving the Congress in deciding techniques and other strategies about the war on terror, I read on (sic) The Wall Street Journal what Congress knew about torture, and they say that beginning 2002, spring 2002, Nancy Pelosi and other key Democrats and Republicans, as well, on the House and Senate Intelligence Committee were briefed on the CIA antiterror interrogation programs, including the use of waterboarding, and they did not to stop such -- they did nothing to stop such activities.  So what do you know about it?  And maybe the difference is just a different sensitivity just after 9/11 and eight years later.  First question.

And second question:  Do you think that Obama may risk to repeat the error, the mistakes of the Clinton administration about the CIA?  And here I'm quoting the Pulitzer winner James Risen and his book "State of War," where he said that the policy of the Clinton administration affected badly the CIA and its ability to recruit new spies and lowered the risk-taking attitude of the CIA in his years.

MCMAHON:  They're two very different questions.  Maybe -- Daniel, how do you feel about the CIA question, maybe going -- taking that one first?

PRIETO:  On the second question, you know, I think 9/11 was unique in that if you look at American foreign policy, we tend to go through large periods that are well-defined by sort of watershed events.  I think U.S. investment in national security and its focus on foreign policy at this point is really driven by memories and the experience of 9/11.  I think the risk of going back and sort of relaxing one's guard or denuding the CIA of resources is not as high as the questioner suggests it might be.

Certainly, the budget environment in the United States will force us to ask really tough questions about what we fund and where we fund in the United States, but I think there will be a salutary effect on the national defense side of, you know, expected drawdowns in Iraq as we make progress there.

I certainly think the CIA and the quality of our intelligence will actually remain a pretty high focus, given some of the missteps that have occurred on the intelligence side, whether it was Iraqi WMD, or not getting a good feel or having a better ability to foresee the occurrence of 9/11.

I think the combination of that and a real focus after the 9/11 Commission report on information sharing and really creating an environment in which the CIA and the intelligence community shares information better and is more forward leaning in its risk analysis means that the CIA, hopefully, will continue to get resources and be resource well and strengthened.

The last thing I'd make about the CIA is that we're in the midst of a significant and very meaningful generational change.  I've looked at some of the statistics.  I think it's somewhere like 40 -- somewhere from 40 to 60 percent of current folks at the agency were not there 10 years ago, which means you have a new generation of analysts and operatives coming in, I think, who are much more used to dealing with a flatter management environment and much more used to dealing with technology, transnational issues and sharing information amongst themselves.

And that's one of the things that gives me real hope that the CIA will be strengthened and the intelligence community will be strengthened going forward under the Obama administration.

QUESTIONER:  Perhaps, briefly, on the first question, I think it was relating to reports that the congressional leadership, Democratic as well as Republican, were in fact privy to some of the more -- some of the tougher interrogation policies and so forth.

WAXMAN:  Is that for me?  This is Matt.

MCMAHON:  Matthew, yes.

WAXMAN:  Sure.  I mean, I actually can just say I don't know.  I hadn't seen that particular report, though I've seen other reports about who may have been involved in briefings on some of the more controversial techniques.  I don't know who was aware and who wasn't.

More broadly, though, I think it relates to the question of what role Congress ought to play in shaping interrogation and detention policy.  And I think one of the biggest mistakes of the Bush administration's approach to fashioning a legal framework was its unwillingness, its resistance to working with Congress to fashion intelligent detention and interrogation law.

I think not only was that a mistake as a matter of law, but also I think it virtually guaranteed the very type of judicial -- of court intervention that the Bush administration later complained about.  I think had the Bush administration chosen to work with Congress from the beginning, it could have ended up in a place it found much more favorable, in terms of the state of the law.

MCMAHON:  Thank you for those questions.

Operator, do we have another question?

OPERATOR:  Yes, sir.  Thank you.

Our next question will come from Diana Molineaux from Radio Marti.

QUESTIONER:  Yes, good morning.  Diana Molineaux, Radio Marti.  I am calling to ask about the one-year time for closing it.  If the problems are all not solved, is it going to be a postponement, or this is a fixed date?

MCMAHON:  Matthew, do you want to kick that off?

WAXMAN:  Don't know.  I mean, the president was pretty emphatic about a one-year deadline, and so it would be difficult to retreat on that, politically.  So, you know, at least at this point I'd expect them to work very, very hard to meet that deadline.  My prediction is that a year from now, the Obama administration will not have found sort of durable solutions for all of the detainees at Guantanamo.

If it wants to keep to that deadline, it will likely end up having to move some detainees into the United States, with some open questions about under what legal status it will -- will continue to hold them.

MCMAHON:  Thank you for the question.

Next question, please.

OPERATOR:  Our next question will come from Christina Bergmann, Deutsche Welle.

QUESTIONER:  Yes.  That's the German international broadcaster.

You've already mentioned the question of other countries taking some of the detainees.  And closing Guantanamo is a very hot topic in Europe and Germany especially.  And there are two different opinions.

One side is saying that it's an internal problem of the United States and the United States should deal with it.  And the other side is saying, Europe also has to take responsibility.

So my question is, can the United States solve this problem alone?  Or should Europe help?  And if yes, how?

MCMAHON:  Daniel, why don't you start off, please?

PRIETO:  I do think that the U.S. cannot solve it alone.  I think the view that maybe the U.S. or certain actors in the U.S thought the United States could solve the transnational terrorism problem alone led, may have led to some of the overreach and errors in our policy.

I think we definitely need the help of our friends and allies, especially our friends in Europe.  In terms of certain elements in Europe thinking this is a U.S. problem alone, I would argue that it's not.

I think if you look not just at the transnational threat not just as exemplified by 9/11 but look at it as a sort of transnational terrorism problem, it is certainly true that European countries face similar difficulties, whether it's the U.K. and the transit bombings, whether it's Spain and the train bombings, whether it's plots that have been uncovered in Germany or whether it is French social issues, surrounding their own ethnic communities, I think it is a global problem.

It extends beyond the U.S. and Europe as well, when you have countries like Somalia, ungoverned regions in Pakistan.  It is a global problem that I think anyone that's serious, on the international field, realizes needs collective solutions.

I think the U.S. can certainly play a leadership role in developing those solutions.  I think the U.S.'s ability to play a leadership role in those solutions had been hampered significantly, by the scandal surrounding some of our counterterrorism policies, but is now -- gets fresh wind in the sails because of the new administration.

But I certainly think that Europe can help.  Europe needs to help.  And we've talked about some of the tactical ways that this could happen, in terms of helping receive or resettle certain detainees.

I think Europe can also help at a broader level.  I think on the diplomatic front, I think there should be the kind of intellectual, strategic discussions about how groups of countries can collaborate and cooperate to deal with the threat of transnational terrorism on all fronts: diplomatic, financial aid, military, law enforcement.

And I think once you expand the discussion of counterterrorism, from the narrow lens of war to all the aspects of national power, it becomes very clear to me that the Europeans should play a lead role with the United States.

MCMAHON:  Thank you for that question from Deutsche Welle.

Another question, please.

OPERATOR:  Thank you.  Our next question will come from Nestor Ikeda from Associated Press.

QUESTIONER:  Thank you.  This is Nestor Ikeda from the Associated Press, the Latin American division.

I have a question about the symbolism that President Obama's decision on Guantanamo may have, in the foreign policy, the U.S. foreign policy.  And because Guantanamo is in a Latin American country -- is located in a Latin American country, would you find any kind of symbolism in -- from Obama to Latin Americans?

MCMAHON:  Well, this focuses a little bit more on the question we talked about at the outset, of the importance of this as a gesture first and foremost, and considering what -- how foreign policy has been, perhaps, tarnished.

Matthew, maybe you first, and Daniel, briefly, on both?

WAXMAN:  Yeah.  I mean, I would just begin by saying that symbolism is important here, and the United States has a lot of work to do in rebuilding its reputation and credibility, especially on issues related to the rule of law.

I mean, one, I think, unfortunate consequence -- or sort of collateral damage -- of the -- of the Bush administration's approaches at Guantanamo was to damage U.S. credibility and leadership in promoting certain legal principles abroad, legal principles of a strong role for courts, legal accountability, respect for basic minimum treatment standards for all prisoners, et cetera.  And we, the United States, have a tremendous interest in promoting those ideals, not just as a -- not just for their inherent value but because I believe we have a strategic national security interest in promoting those principles abroad.

MCMAHON:  Daniel, did you want to add anything?

PRIETO:  I would just amplify that.  I think the move reaffirms to the rest of the world that America is committed to human rights and liberty, the rule of law and the values that underpin American democracy and its appeal, frankly, to the rest of the world.  I mean, many of these aspects of soft power are critical in terms of the United States's ability to deal and make progress on a host of issues with the rest of the world.

Counterterrorism policy under the Bush administration had begun to create a serious amount of friction on issues even unrelated to terrorism.  So I think the symbolic effect has a pretty quick practical effect -- pretty quick and immediate practical effect as well.

And I certainly would also add to the closure of Guantanamo what I thought was a very savvy move by the Obama administration, to have his first interview be with Arab media.  I think it sends the right message, and I think there is nothing more important or that shouldn't be higher on his list than trying to remove mistakes in U.S. counterterrorism policy from the recruiting toolkit of terrorist groups -- really undercutting and putting to rest that our counterterrorism policies are in some way a war against Islam.  They are not.  And it is smart of him to do everything he possibly can to get rid of that notion, because that not only reduced American security when people thought our terror -- counterterrorism policies were a war against Islam; it also created significant drag on our ability to pursue efforts in other realms, even beyond counterterrorism policy.

MCMAHON:  And I think that's a note that we're going to wrap up on today.

I thank all of you who were listening in on this call for taking part, and especially to our two guests, CFR Adjunct Senior Fellows Matthew Waxman and Daniel Prieto, for taking part in this call about the implications first of the closure of Guantanamo Bay, and then also, broader, on -- of civil-liberties policy in the context of counterterrorism policy.

This is Robert McMahon, deputy director of cfr.org, and thank you for taking part in this conference call.

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