The White House is considering closing the detention facility in Guantanamo Bay, Cuba. Human rights groups say the hundreds of terrorist suspects housed there have unfairly been denied legal rights afforded prisoners of war and should be either tried or released. Administration officials, however, deny these charges and say the facility remains the best means to prosecute suspected terrorists because of the nature of the terrorist enemy.
James Jay Carafano, senior research fellow at the Heritage Foundation, and Gabor Rona, international legal director at Human Rights First, debate the diplomatic, legal, and political merits of shutting down the detention facility.
July 13, 2007
We seem to agree that the locale of detention is less important than that the United States "do the right thing" wherever detainees are held. But this late in the Guantanamo day, after many detainees have been held without charge for five years and some have been subjected to documented abuses, it is difficult to understand why one would deny the need to undo the damage Guantanamo has done to America's reputation in a battle that is so much about reputation.
Mr. Carafano’s suggestion that administration critics are waging “lawfare” provides some insight into why Guantanamo has become such a symbol of lawlessness to the rest of the world—critically, not just for our enemies but among our allies. The United States is the world's strongest democracy and led the world in creating—and pressing other governments to adhere to—the international system of human rights and humanitarian laws it now seeks to evade. That the administration’s defenders are now arguing that those who seek compliance with the laws, including the treaties the United States has promised to uphold, are somehow engaging in a kind of assymetric warfare against this country goes a long way toward explaining why the administration’s Guantanamo policy is a failure.
How the United States treats those it suspects of terrorism—including how it tries them—speaks volumes about this country as a nation, and our confidence in the institutions and values that distinguish America. Many critics of the administration's policies, including those military and civilian lawyers involved in representing detainees, are acting out of patriotism. They play an important role in our constitutional democracy. They recognize that cutting legal corners reaps little more than distrust and only fuels further animosity. Benjamin Franklin is reputed to have said that those who are willing to sacrifice liberty for security deserve neither. And experience shows that doing so risks losing both. Human rights and due process do not compete with security, they ensure it.
By closing Guantanamo, the United States has the opportunity to set a new course, one that takes seriously the long and difficult road ahead in combating the threat of terrorism, while recognizing that adherence to our values and our system of laws is a source of strength in that effort. That is the course designed to bring America back into the fold of ideals and practices for which it stands.
July 12, 2007
James Jay Carafano
I deeply appreciate the comment that the men and women in the armed services at Guantanamo Bay are serving with honor and distinction under very difficult circumstances and not unaware of the controversy surrounding their duties.
It is worth noting as well that the military personnel safeguarding the detainees do so with some degree of personal risk. Some of the detainees are still fighting the war against us. There are acts against the military personnel almost every day that range from spitting to attempted stabbings. The doctors that assiduously look after the detainees’ health (the detainees have better access to medical care than the military personnel at the base) have to wear body protection and neck guards in case they are attacked by their patients. Military lawyers vociferously defend the rights of detainees regardless of how the detainees feel about them.
So at least we agree that whatever the policy should be in regard to the detention facilities at Guantanamo Bay that the US military is striving mightily to do their job in accordance with the rule of law and their responsibilities to the nation.
Where I do perhaps take a slightly different view is with the assertion that “even Mr. Carafano would not dispute: that closure of Guantanamo will strengthen the hand of the United States in a fight where victory depends on a strong global coalition with the ability to win hearts and minds.”
No, I don’t think that is a valid position at all...and here are two reasons why:
(1) It will not satisfy the administration’s critics. In large part the debate over Guantanamo Bay represents what some analysts have termed as “lawfare,” misusing or reinterpreting laws to make American actions appear illegitimate in the eyes of the world. In other words, what they really disagree with is U.S. policy, but the policy debate is reframed as a legal issue.
(2) If the detention facilities at Guantanamo were closed, the United States would still have legal and moral obligations to safeguard the prisoners, collect intelligence, try war criminals, and send home detainees who are no longer a threat. Meeting all those obligations in accordance with the law and national security concerns will require procedures and facilities that look an awful lot like Guantanamo.
The best thing the United States can do to win the war of ideas is to do the right thing.
July 11, 2007
Mr. Carafano denies that Guantanamo was intended to operate beyond the law. But there can be no doubt that the initial decision to detain people at Guantanamo was taken at least in part because of its unique character as a place under total U.S. control, but one which was seen to be, as one unnamed official quipped, “the legal equivalent of outer space.” The administration consistently argued in court that Guantanamo detainees were beyond the reach of the Geneva Conventions, human rights treaties, and the power of the courts themselves. President Bush’s memorandum of February 7, 2002 even asserted that the detainees do not have a legal right to humane treatment.
The administration was wrong to assume that the courts could not reach Guantanamo and right to fear that the courts would find its conduct there unlawful. In the Rasul and Hamdi decisions, the Supreme Court disagreed with the administration and ruled that the detainees have the right to challenge their detention and that existing procedures were insufficient to protect against arbitrary detention. In the Hamdan decision last year, the Court found that the United States was bound by the Geneva Conventions’ minimum standards, including the right to humane treatment, and that the military commission trial process established by the administration did not meet minimal fair trial requirements. Each time the Supreme Court has addressed these issues, it has found the administration’s practices to be wanting. And the Court recently decided to review a lower court decision that upheld the procedures the administration used to determine whether a detainee is an “enemy combatant.”
To suggest that the administration has consistently intended to respect, and has shown respect for, applicable law ignores this entire history.
As to treatment of detainees, I have no reason to doubt that there has been improvement in the treatment of detainees at Guantanamo over the last several years. But there can also be no question that for a significant period of time, official cruelty was part of the administration's Guantanamo policy: former Secretary of Defense [Donald] Rumsfeld authorized treatment of detainees that was, at a minimum, cruel and abusive and which the International Red Cross called “tantamount to torture.” These abuses were confirmed by internal government investigations and are not in serious dispute. They are part of the legacy of Guantanamo.
Mr. Carafano rightly speaks highly of the personnel administering Guantanamo. These honorable military men and women are not the problem. They are laboring under difficult circumstances to administer a system that has consistently been found by the Supreme Court to fail to deliver the minimum requirements of law. Secretary of Defense [Robert] Gates is reported to have argued within the administration for closure of Guantanamo. He sees something that perhaps even Mr. Carafano would not dispute: that closure of Guantanamo will strengthen the hand of the United States in a fight where victory depends on a strong global coalition with the ability to win hearts and minds.
July 10, 2007
James Jay Carafano
“The root cause of this failure”….is a debate about public policy that opts for rhetoric over reasoned discussion. It is difficult to have a reasonable discussion about U.S. detention policies and the future of the detention facilities at Guantanamo Bay when an opening statement is presented that declares, “The detention and interrogation of prisoners at Guantanamo was intended to operate beyond the law.”
I have a problem with this statement. To say the detention facilities at Guantanamo Bay operate outside the law strains credulity. Federal law in the United States is the product of three branches of government: the executive, the Congress, and the courts. The executive branch has complied with every law passed by Congress and respected every ruling germane to the detentions at Guantanamo Bay set down by the Supreme Court.
Congress has legislated on the issue, held numerous hearings, and a number of members and Congressional staff have toured the facilities. It is difficult to take an argument that detention operations are conducted outside the law seriously.
Furthermore, Guantanamo Bay isn’t run by the CIA, private contractors, or the Star Chamber. It is run by men and women in the armed services. They are the guards, the administrators, the doctors, the engineers, the lawyers, and the chaplains. They’re the ones in charge. And their work is hardly hidden: The Pentagon has invited a steady stream of reporters, politicians, human rights groups, and the representatives of other governments to visit the facilities and judge for themselves.
I have been there. But I have to admit that when I went recently, I didn’t go as an unprejudiced judge. I know these people. They are the kinds of people I worked with during my twenty-five years of military service. In fact, some of the folks working at Guantanamo I have served with before. I feel like I have spent enough time around soldiers to know when I’m being told the truth, and I have spent enough time around the Pentagon to know not to believe everything I’m told.
I’m also a military historian, and I know sometimes even good armies do bad things. There are more than a few examples in America’s military past. I have little tolerance for these travesties. Nothing angers me more than dishonorable service in the name of an honorable cause.
We were shown all the facilities, how the prisoners were being treated, and permitted to talk freely to any soldier we came across. I chatted with reservists who had been there a few months and quizzed professional interrogators who had spent their whole careers talking to bad people.
I found nothing at Guantanamo to be ashamed of.
July 9, 2007
An effective counterterrorism policy would segregate terrorists from society, gain intelligence about their activities and organization by lawful means, hold them criminally responsible for their crimes, and discourage the spread of their numbers and ideology. Guantanamo has not only failed to achieve these goals but in many respects has undermined them. It should be closed.
The root cause of this failure is found in its design. The detention and interrogation of prisoners at Guantanamo was intended to operate beyond the law. The facility has become an icon of torture, arbitrary detention, and kangaroo court trials. It is a poster child for terrorist recruitment, an obstacle to international cooperation in counterterrorism, and a gift to autocrats who now invoke Guantanamo as the new standard for human rights set by the United States.
There are certainly some dangerous criminals there. But I could fill hundreds of pages with evidence, mostly derived from the government’s own records, of arbitrary detention of innocents, cruel and inhumane treatment, and unfair trials. On its own, this evidence indicts Guantanamo.
What matters as much as these injustices, however, is the stain on American values that Guantanamo is and has come to represent to the world. Closing Guantanamo is a necessary but insufficient step to righting these wrongs. While the government correctly asserts that combatants may be detained without trial for the duration of armed conflict, it has wrongly denied the prisoners their rights under international and national law. And I don’t mean the “straw man” of POW [prisoner of war] status that pro-Guantanamo advocates so consistently argue against. Claiming that the detainees have no rights under the Geneva Conventions because they do not meet the criteria for POW status simply ignores huge swaths of international law applicable to non-state fighters, including those who target civilians.
But many of the prisoners are not even alleged to have engaged in hostilities against the United States. They were caught up in a web of bounties paid for the delivery of “terrorists” and a definition of enemy combatant so broad as to include mere suspicion of association with alleged terrorists.
To now walk back from this disastrous policy, it is not enough to move Guantanamo to U.S. soil. Detainees who have committed crimes should be prosecuted in accordance with fundamental fair trial guarantees missing from the Guantanamo military commissions. Where that is impossible due to insufficiency of evidence, either because there is none or because it is inadmissible in a fair trial, release is the only proper course.
July 9, 2007
James Jay Carafano
Should Guantanamo Bay be closed? My short answer is—I don’t care. I really don’t. I don’t so much care where the government does things, so long as it does the right things. My standards are pretty high. Wherever the U.S. military holds combatants, it must meet certain obligations:
- Keep combatants who want to kill and destroy Americans and their friend and allies off the battlefield;
- Detainees must be held in a safe, humane, and secure manner;
- At an appropriate and reasonable time, detainees must have the right to a fair hearing if the legitimacy of their detention is in question, and their detention should be reviewed in a fair manner to ascertain whether detention is still warranted (no one should be detained indefinitely);
- If detainees are suspected to have committed war crimes, they should be put on trial under a legal system that provides fair due process;
- Safety and security should be guaranteed for the guards, support personnel, and legal staffs representing the government and the detainees, as well as the detainees themselves;
- The government must be able to efficiently and effectively collect intelligence and protect national security.
These obligations are the same no matter where detainees are held. Today, they are all being met at the military detention facilities in Guantanamo Bay, Cuba, in accordance with U.S. law. A legitimate tribunal process determines whether detainees are a threat to the United States. Annually, the tribunal reassesses whether detention should be continued. These reviews have led to the release of a number of detainees. Some have been returned to their home countries or given asylum in other countries, and others are awaiting release while the United States ensures that the countries receiving them will treat them in a humane manner. Still, others will be tried as war criminals under a military commission process established and authorized by law.
Any proposal to move detention operations must articulate how these detention operations can be performed more efficiently and effectively than they are now. Arguing that the United States should close the facilities merely to placate criticisms of its detention policies is insufficient. By and large, the criticisms are patently false and unjustified. In any case, because the government’s responsibilities will not change, it is unlikely that detention operations will be conducted in a significantly different manner in a different location. Merely closing the facilities at Guantanamo Bay is not likely to placate any of America’s critics.
The best policy is to continue to do the right thing: Protect American citizens, respect the rule of law, and combat transnational terrorism. Moving the jails will not change anything.