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New Spotlight on Guantanamo's Flaws

Interviewee: Karen J. Greenberg, Executive Director of the Center on Law and Security at NYU
Interviewer: Jonathan Masters, Deputy Editor
April 27, 2011

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The WikiLeaks organization recently released thousands of pages of classified military documents describing intelligence assessments of prisoners at the Guantanamo Bay detention facility. International law expert and author Karen Greenberg says the new material confirms fundamental flaws in the Guantanamo facility's policies and procedures that persist despite changes made by the Obama administration. Those changes, such as a formalized review process for long term detainees, represent "more of the same," says Greenberg, arguing that "trying to make a bad system better is not possible." Greenberg says the United States needs a better system for assessing and addressing the dangerousness of people in custody. "We still have in place essentially no plans for rehabilitation or deradicalization," she notes. "We've put [these prisoners] in a category that they can never get out of, with or without evidence." As an alternative system for prosecuting transnational terrorists, she supports establishing a separate international court where the United States could take a significant role.

What's your initial reaction to the classified documents leaked about Guantanamo?

It's verification of what we've been told by the people who've investigated Guantanamo from the outside. It's a deepening of the story, rather than a new chapter-- at least from anything we've been told so far. It all boils down to the same thing: There was an insufficient -- and that's an understatement -- ability to assess who these detainees were and what kind of threat they posed, [and] this problem has barely gone away to this day. We don't know who we had and, because of the way we obtained information [sometimes through "enhanced" interrogation methods], we don't know if the information we had is reliable. These documents reinforce the notion that rather than strengthen our knowledge of another part of the world and knowledge of our enemies, Guantanamo has done anything but that.

What's your opinion of the policies the Obama White House has implemented?

It's more of the same. The Obama team thinks that if you rationally consider this problem, you will come up with rational answers. They are incorrect. Trying to make a bad system better is not possible in this case.

I think the moral authority on Guantanamo can never be recouped. We still have in place essentially no plans for rehabilitation or deradicalization programs -- no plans for thinking about how to deal with these detainees.

One of the things these [leaked] documents talk about is risk--what are the categories of risk? We still don't know. What is "high" risk? Is a high risk somebody who says "I'm going to kill your family,"? Or, is a high risk somebody who is a known associate of al-Qaeda? They can't be in the same categories.

The question is: How do we really assess risk? Until we are willing to make some judgment calls, and trust ourselves, then we're going to have a lot of problems. We didn't have enough material to assess these detainees coming in, and we don't have enough to assess them going out--and that's what these documents show.

How do you see the political fallout of these new leaks?

I have one worry and one hope. The worry is that because these leaks place renewed focus on the [the question of] dangerousness of these detainees. Without a disciplined approach for assessing that danger, documents will support Obama's reliance on the possibility of indefinite detention. On the other hand, my hope is that if we really do have more evidence against these prisoners, as the administration claims, maybe we really can begin to try these people, whether it's in military commissions or at home.

Where does U.S. Guantanamo policy leave American moral authority?

Our moral authority can't just be about who we'd like to be. Part of the equation has to include how we choose to protect our citizens. The moral authority on Guantanamo can never be recouped. We still have in place essentially no plans for rehabilitation or deradicalization programs. We've put them in a category that they can never get out of, with or without evidence. Forgetting the extralegal structure we set up, we're not thinking toward the future in a realistic way, and we've in a sense consigned these people to a vacuum of history that is unforgivable.

Do we need an international solution with regard to trying and incarcerating transnational terrorists?

There are two decisions we need to make. One: Are we better at identifying who is of danger to us? I would expect that we are. I would expect that the wakeup call of 9/11 that led to the debacle of Guantanamo has definitely led us to having a much better sense of who is out there and who we need to remove from the scene. The second decision is: Is this a matter of war, or are these people we can keep in custody?

To your point about an international solution, I would say that in matters of transnational terrorism, I like the idea of an international court, but not one where the United States is just a minor player like the Hague. The international courts that exist right now are not something that would be politically viable in the United States. But I do like the notion of a separate court that could deal with many of these terrorists, who have often attacked more than one country, and who often have indictments in multiple countries. I think it could be a system where the United States could take a prominent role.

Was there a turning point where Guantanamo could have gone down a path that upheld American ideals of rule-of-law and military discipline?

The military leadership originally in charge of Guantanamo -- when they made independent policy decisions in the absence of a Bush administration plan -- conceived of it as a preparation facility for trial. They thought about -- even though they didn't have it -- establishing a chain of evidence. They understood the degree to which they were put into a compromising situation by having detainees in cages, which violates every form of military justice and international law.

I do like the notion of a separate court that could deal with many of these terrorists who have often attacked more than one country and who often have indictments in multiple countries. I think it could be a system where the United States could take a prominent role.

The real turning point was the end of March 2002 when Donald Rumsfeld summarily removed the original group because of their insistence on the rule of law and human rights, and replaced them with people who would report to him directly -- outside the chain of command. It was from this point that the government developed the so-called "torture memos" and other controversial policies.

In your book "The Least Worst Place", you describe the formative days at Guantanamo--the first three months or so. What was the original sin as you see it?

The original sin was taking away power from the people who had a clear sense of what was wrong with Guantanamo from the beginning. My book is about the first group of military leadership at the facility, and how almost immediately they understood that these prisoners who had been picked up were not the right people and that there was really no evidence against many of them. The original sin was the Pentagon not listening to these leaders because they didn't want to hear what they had to say.

What motivated this decision by the Pentagon? Fear?

Fear is the wrong word. I think it was the government's embarrassment at its own ignorance. If you don't know who the enemy is and how to figure out who is plotting something against you, then every single piece of related evidence, however circumstantial, is important. One of the things they thought and continue to think is that somebody, who is held at Guantanamo, may someday know somebody who may emerge down the line in the hierarchy of al-Qaeda. It's a policy of "Gitmopedia"- in other words, it was the mantra anything would help them. For someone [the original commanders] to claim these detainees weren't important meant they didn't get it as far as the Bush administration was concerned.

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