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Problems in Closing Guantanamo Detention Camp

Interviewer: Bernard Gwertzman, Consulting Editor
Interviewee: Test test, Adjunct Senior Fellow for Law and Foreign Policy
December 18, 2008

Matthew C. Waxman, who from 2004 to 2005 served in the Pentagon as deputy secretary of defense for detainee affairs, says the controversial detainee camp at Guantanamo Bay should be closed but that doing so will trigger several important questions. "The path to closing Guantanamo will involve some combination of sending some detainees to their home country and bringing some of them to the United States for prosecution," he says. When Barack Obama becomes president, Waxman says, he should "declare emphatically his intention to close Guantanamo, though he should do so with some caution as to how quickly he can do it." It is unclear how quickly Obama might act to close the facility, though Secretary of Defense Robert Gates, who will stay on as Obama's Pentagon chief, has ordered staff to draw up plans (BBC) for an eventual shutdown. Meanwhile, referring to the prosecutions currently under way, Waxman says al-Qaeda seems to be winning the propaganda battle with the United States "with little effort and a not very sophisticated strategy."

You've had a good deal of experience working on the problems surrounding the Guantanamo Bay detention camp. Can you give a sense of how this whole detention center got set up in the first place?

After 9/11 and especially after the initial phases of the war in Afghanistan, the United States and its coalition partners were capturing, holding, and wanting to interrogate a large number of suspected al-Qaeda and Taliban fighters and needed a place to do it. Initially, Guantanamo served two functions: one was as a secure detention facility, a place far from the front lines of battle that the United States could control and secure relatively easily. In addition, Guantanamo served an intelligence mission. The belief was that some of the most important information the United States and its partners needed to glean, analyze, integrate, and then utilize, was inside the heads of those it was capturing, so-called human intelligence. It had one other important feature. It had a legal status that some in the Bush administration sought to exploit. On the one hand, it was a piece of territory over which the U.S. government had complete control. But on the other hand, it was technically outside the territory of the United States. And so, as a result, it was seen in legal terms as a zone in which U.S. personnel could conduct detention and interrogation operations with few legal and judicial constraints.

Guantanamo has become synonymous with torture. It's been a rallying point for human rights groups who have called for its closure. Opponents have said the methods used there were illegal, immoral, and harmful to America's image. In fact, was there much illegal interrogation?

It's correct that today Guantanamo seems indelibly associated with mistreatment and abuse, but in actuality, many of the worst abuses appear to have taken place elsewhere, including in Iraq and Afghanistan. That's not to say that there weren't abuses at Guantanamo. There were both interrogations that many would regard as violating basic standards of prisoner treatment, and there were a number of instances in which U.S. personnel committed unauthorized acts of abuse. The Guantanamo of today is very different than the Guantanamo of 2002 and 2003. It's gone through substantial reform processes, including improvements to its facilities, the training of guards there, and the operating procedures by which they work.

And its size, at its maximum?

It was in the high 700s. Almost 800 at its maximum, probably around 2003.

Now it's what?

I think it's down to about 250 now.

It became a political issue in the campaign. Both President-elect Barack Obama and Senator John McCain said they would close it.

It seems to be almost a consensus now that Guantanamo needs to be closed.

Even President Bush agrees?

President Bush has said that he'd like to be able to close Guantanamo. Many interpret that remark not as meaning a commitment to closing it, but saying if he were able to come up with a better alternative, he would consider it.

What happens to the people there now?

That is a problem. It's one thing to say you want to close Guantanamo. It's another to come up with a practical plan for doing so. The issue is not simply where do you hold people, or where do you transfer them, but rather--and this is the most difficult issue--on what legal basis will the United States continue to capture, hold, and interrogate suspected al-Qaeda prisoners?

We had this odd situation last week where five of the senior prisoners, including Khalid Sheik Mohammed, who supposedly masterminded 9/11, said they wanted to plead guilty and be sentenced to death. That question is pending, isn't it?

"On the one hand, the United States wants to use the military commission to showcase the atrocities of al-Qaeda, and demonstrate a victory for rule of law over terrorism. On the other hand, al-Qaeda wants to use legal proceedings to make its own political statements, and to draw attention to alleged abuses by U.S. personnel. So far, it's al-Qaeda that seems to be winning the propaganda battle there."

Alongside the detention operations has been the parallel prosecution program. Last week's event highlights the ongoing propaganda battle between the United States and al-Qaeda playing out in a Guantanamo courtroom. On the one hand, the United States wants to use the military commission to showcase the atrocities of al-Qaeda, and demonstrate a victory for rule of law over terrorism. On the other hand, al-Qaeda wants to use legal proceedings to make its own political statements, and to draw attention to alleged abuses by U.S. personnel. So far, it's al-Qaeda that seems to be winning the propaganda battle there, with little effort and a not very sophisticated strategy. It's mostly been U.S. government missteps that have cast doubt on the credibility and legitimacy of the U.S. detention and prosecution system there.

Talk to me specifically about this case. It's been said that he was subject to this process called "waterboarding" to extract confession material. Would this evidence be acceptable in court if the United States had to prosecute him?

One of the difficulties of prosecuting in any form, military commissions, court martial, or federal courts, will be the likelihood that defendants will raise allegations of abuse and claim that confessions were extracted through torture or abusive treatment.

When they said they wanted to confess, what was the point of that? To become martyrs and be executed?

It's hard for me to try to put myself inside the mind of somebody like Khalid Sheik Mohammed and make sense of his decision making. But at least from some preliminary indications, it appears that some of them are challenging the U.S. government to put them to death and make martyrs of them.

I know you're not working for Obama's team, but what would be the easiest way to resolve this?

"During the years I was at the Pentagon, the main issue, the biggest controversy, was about treatment and treatment standards. Now the biggest issue is about legal process."

I don't think there's an easy way. Guantanamo should be closed, but it won't be easy and there's no one size that fits all of the detainee cases there. The path to closing Guantanamo will involve some combination of sending some detainees to their home countries and bringing some of them to the United States for prosecution. The really difficult dilemma for the Obama team will be what happens if there are individuals who are deemed extremely dangerous, or perhaps were directly involved in 9/11 plotting, who for one reason or another cannot be sent to a home country or third country, and cannot be successfully prosecuted. What will the Obama administration do with those cases? Is it willing to continue to detain those individuals either as enemy combatants, as the Bush administration has done, or perhaps will it seek statutory authority from Congress to hold them in so-called preventive detention?

Under the rules of war, you can hold prisoners of war until the war ends, right?

That's right. The Bush administration has argued from the beginning that we are in a war with al-Qaeda so that its fighters can be captured and held for the duration of hostilities, and it continues to defend that argument in court. So far, the Supreme Court has nibbled around the edges of it but has not directly repudiated that claim.

When you were in the Pentagon, you were working on this issue. Did you leave the Pentagon because you wanted Guantanamo closed?

The main issue for me was the issue of detainee treatment standards. The Bush administration decided early in 2002 that as unlawful enemy combatants, detainees at Guantanamo and elsewhere were essentially unprotected by international prisoner treatment standards.

You mean the Geneva Convention for dealing with prisoners of war?

Geneva in particular. I was involved in a long-running internal debate about whether that early decision ought to be reexamined and reversed.

Apparently it has been now?

It has been as a result of the Supreme Court's decision in a case called Hamdan. In 2006, the Supreme Court ended up holding that Common Article 3 of the Geneva Conventions, a provision that establishes baseline minimum-treatment standards, applies in this war against al-Qaeda.

So that's where we are at the moment?

I would say that during the years I was at the Pentagon, the biggest controversy was about treatment and treatment standards. Now the biggest issue is about legal process. To what legal process and protections are detainees entitled?

To me a real dilemma would occur if Khalid Sheik Mohammed is moved to the United States to stand trial and then is found innocent because of mistreatment.

[One of] the biggest questions for the new administration is exactly that. The location of where you hold prisoners is really of secondary importance to the question of what rules and procedures you use to detain people.

Are these legal procedures in flux?

I would say that they are still in flux as a result of Supreme Court review of some decisions, and as a result of ongoing debate inside and outside of government.

Is there something Congress could do?

Congress may have to come in and establish a set of rules and procedures to govern these situations.

Could Congress do so, even ex post facto?

It could, yes, because under the law of war, Congress could come in and apply statutory rules to govern detentions.

If Obama called you up and said, "What should I do?," what would you tell him?

"The Bush administration has promulgated a set of guidelines that don't go far enough in declaring certain interrogation techniques completely off limits, and I would like to see the incoming president correct that quickly."

There are two things he could do very quickly and unilaterally through executive order. One would be to declare emphatically his intention to close Guantanamo, though he should do so with some caution as to how quickly he can do it, and leveraging his commitment to do so to get the support of some of our coalition partners who will need to step up and assist in closing it by taking some of the prisoners from us. The second thing I would do is revive the current interrogation guidelines for the Central Intelligence Agency [CIA]. Currently, the Bush administration has promulgated a set of guidelines that don't go far enough in declaring certain interrogation techniques completely off limits, and I would like to see the incoming president correct that quickly.

Waterboarding is still allowable?

I wouldn't go that far; it's ambiguous what the position of the new administration is, and I'd like to see the new president be emphatic about it.

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