What to Do About Guantanamo Bay

Tuesday, April 22, 2014
Marc A. Thiessen

Fellow, American Enterprise Institute; Former Chief Speechwriter to President George W. Bush, The White House

Professor, Columbia Law School; Adjunct Senior Fellow for Law and Foreign Policy, Council on Foreign Relations

Phillip Carter

Senior Fellow, Center for a New American Security; Former Deputy Assistant Secretary of Defense for Detainee Policy, U.S. Department of Defense


President, Council on Foreign Relations

Despite President Obama's stated goal of closing the prison at Guantanamo Bay, it continues to hold dozens of detainees. Phillip Carter of the Center for a New American Security, Marc Thiessen of the American Enterprise Institute, and CFR's Matthew Waxman join CFR President Richard N. Haass to discuss the costs, benefits, and risks of keeping Guantanamo open. Because many of the remaining detainees are difficult to prosecute in criminal court and too dangerous to release, Guantanamo is unlikely to be shut down anytime soon.

Each meeting in the What to Do About... Series highlights a specific issue and features experts who put forward competing analyses and policy prescriptions in a mock high-level U.S. government meeting.

HAASS: Good afternoon. Welcome to the Council on Foreign Relations. I'm Richard Haass, president here. And, today's event is the third in our relatively new "What to Do About" series, in which experts basically discuss a difficult, and often controversial policy issue.

And, then, not just analyze it, but also make some prescriptions about what the United States could do. And the way we structure it is something along the lines of a mock NSC meeting, except no one here is representing an agency, but all three of these individuals is essentially here as what in a different generation was called a wise man, a counselor to the president, and simply giving what he believes to be the right position, apart from any bureaucratic or organizational bias.

We're extraordinarily lucky today, because we have three individuals who have thought hard about the hard issue that is the subject of today's meeting, which is what to do about Guantanamo. To my immediate left here is Phillip Carter, who is now a senior fellow at CNAS, the Center for New American Security. And in his previous life was a Deputy Assistant Secretary of Defense, overseeing detainee policy.

Sitting next to Mr. Carter, is Marc Thiessen, and Marc is a senior—is a fellow at the AEI, the American Enterprise Institute, and he was formerly chief speechwriter to 43, George W. Bush. And, last but not least, is Matt Waxman. Matt is a professor at a new—a young university up the road called Columbia, at the law school. And he's also an adjunct senior fellow here, at the—at the Council on—on Foreign Relations.

Let me just say a few things, just to set the stage, just to make sure that everybody is basically up to date on some of the—some of the statistics before we—we get into the analysis, and, again, policy prescription.

Guantanamo as a—as a facility, was opened in 2002, the year after 9/11, and some 800 or so detainees have been taken there over—over essentially the decade plus since that time. Most were, at one point or another, transferred or released, and most of this took place during the latter part of—of the Bush presidency.

It's now, here we are in the spring of—of 2014, it's now more than five years since President Obama assumed office. And since he announced his intention to close the—the facility, the prison at—at Guantanamo, and no one has been sent to Guantanamo during this entire time.

So, the—the population as a result has come down, as a result of no incoming and lots of people being released or transferred. And now, approximately, I think it's just over 150 prisoners remain at the camp. The majority of those are, or significant plurality of those who are there, are from Yemen, and there are others from such countries as Pakistan, Afghanistan, and Saudi Arabia.

Roughly about the half people at Guantanamo—the number I have is 77 I'm sure I'll be corrected if I'm wrong—of the detainees have been cleared for release, but they remain behind bars because there's no country to which the United States can, under the existing law, send them, and Yemen is a particular problem in this regard.

Congress has passed legislation—what was that year? That Congress passed?

UNKNOWN: Each year.

HAASS: Oh, each year, OK. In that case I should have just chosen a year, and I would have been right.


HAASS: Congress has passed legislation that prohibits the transfer of former detainees to the United States, and has put in place fairly tight and demanding conditions that need to be met before they can be transferred overseas. So, that's essentially the situation.

And, so let me—let me turn to something I've been thinking about. When the president—when this president, when Barack Obama made his announcement that it was a goal of this administration of his—at that point, just beginning administration—to shut down Guantanamo, both implicit and I believe explicit in what he said was that the United States was paying a significant price, reputationally, diplomatically, and in some ways even in the security realm, because it was seen as something of a motivator for the fact that Guantanamo was an open and ongoing concern.

So, one of my questions is, whether that was true or not then. Is it true today? Is Guantanamo still something of a—a recruiting tool that it was alleged to have been five years ago? Does basically—is the fact that it remains open, is it something that is—that is still of high profile?

And is it something that is still a significant motivator of anti-American sentiment and—and behavior? I have—we can just go across the room. Phil? You want to start with that?

CARTER: Sure. The strategic costs of Guantanamo have been the large driver in this, much more than the half a billion dollars we spend each year to keep the facility open.

In terms of catalyzing actual radicalization, that is still an open question. We don't have a randomized control trial that tells us that with Guantanamo it's likely to generate terrorism, without it it's not.

What we do see, though, are issues with allies that arise because of Guantanamo. We saw this most clearly in a recent case of a rendition to federal court here in New York, where the Italian government and their intelligence services cooperated with the U.S. government, in part because they knew that transfer would take place to Manhattan, and not to Guantanamo.

We see this in other liaison relationships with other allies, particularly those of Europe that are more sensitive to these issues and would prefer to work with our law enforcement and intelligence agencies and not with the Department of Defense. So, I still think there are some strategic costs to keeping it open and using that as the preferred venue for detention

HAASS: Marc, let me ask you the same question, but also let me push: Wouldn't we know a little bit just by—for example, by mentions of Guantanamo?

Wouldn't we pick up certain, if not statistical measures, wouldn't there still be a pretty good sense from debriefs, from just what we would pick up, that if one simply did a quantitative analysis of mentions, now as opposed to five or 10 years ago, would—wouldn't that tell us, at least indirectly, if not absolutely, about the salience of this issue?

THIESSEN: It would help, sure. And if you talked to the people who—who follow things in the intelligence community, they'll tell you that it's not a primary recruiting tool that the terrorists even try to use.

But, I would argue, quite frankly, I reject the notion entirely that Guantanamo is—is a recruiting tool for terrorism. And, let me put it to you this way: there was no Guantanamo Bay in 1998, when they blew up our embassies in Kenya and Tanzania. There was no Guantanamo Bay when Al-Qaeda blew up the USS Cole in 2000. And there was no Guantanamo Bay on September 11, 2001, when the terrorists attacked us here in New York City. They didn't need Guantanamo Bay to recruit terrorists to carry out those attacks.

And, I've spent a lot of time talking to interrogators, the people who actually sit face to face the way we're talking with KSM, with—with these senior Al-Qaeda leaders, and what they will tell you that what succeeds, what helps them recruit terrorists, is successful terrorist attacks.

"In terms of catalyzing actual radicalization, that is still an open question. We don't have a randomized control trial that tells us that with Guantanamo it's likely to generate terrorism, without it it's not."
—Phillip Carter

What helped them carry out 9/11, was the fact that for a decade we had a series of escalating attacks and were unable to stop them, and didn't seem to have the will or the capability of preventing them. And that is what recruited more people to come and join the ranks of Al-Qaeda.

So, to the extent that Guantanamo Bay has been helpful in producing intelligence that stopped—that stopped follow-on terrorist attacks, it's actually be a net plus, not a net—net loss for us, in terms of the battle against terror.

HAASS: Matt, you want to weigh in on this?

WAXMAN: Yes, I'd—I'd say that, you know, my best assessment, based on what—what I've seen is that the continued existence of Guantanamo plays some marginal role as a propaganda tool.

But, it's—I haven't seen very persuasive indications that if we were to solve the Guantanamo problem, we would make a big dent in violent radicalization. And I think the main reason for that is that, to the extent that Guantanamo does show up in a list of grievances that contribute to violent radicalization, that's a really long list of grievances.

And, Guantanamo may be at the top, but there are plenty of others, drone strikes, support for Israel, et cetera. I—I—I if you take Guantanamo off the table, again, I'm not sure you make a big dent on—on the propaganda recruitment side.

I do agree with—with Phil that, from a—a national security standpoint, I think the most important costs of maintaining Guantanamo are not the recruitment slash propaganda problem, but friction in our bilateral cooperation in counterterrorism operations with our allies. Our allies are reluctant, for example ...

HAASS: When you say allies, could you be more, is it mainly European allies?

WAXMAN: Mainly European...

HAASS: ... as opposed to Middle Eastern allies?

WAXMAN: Mainly European, I'm talking primarily about our European allies, because they tend to be the most sensitive to it, and also, in some cases, worry about their own legal liability under European law if they were to cooperate with us in certain counterterrorism practices, Guantanamo among them.

Though, I think I—I the operation of Guantanamo has, for example, made what used to be very routine law enforcement cooperation and counterterrorism operations more difficult with the Europeans. There's also an opportunity cost. We continue—we certainly did during the Bush administration—I think we continue to spend a lot of diplomatic capital arguing about Guantanamo and what to do about it, instead of working with coalition partners on—on other, more productive aspects of combating terrorism.

HAASS: Let me just follow up then on, so I understand it. What is at the center of the European objections then to Guantanamo? What is—is it a legal argument? Is it a functional argument that it's not effective? Is it a moral argument? What—what is the—the case, if you will, against it?

CARTER: So, the central argument is borne of a disagreement that this is not an armed conflict, and therefore the very idea of detention pursuant to the laws of armed conflict at Guantanamo is illegitimate. That's the core disagreement, and it plays out at Guantanamo. It plays out on the battlefield of Afghanistan, where our troops have had to have different rules of engagement with—than their allies on the battlefield, and it plays out in the counterterrorism context as well, where they would prefer a law enforcement-centric approach.

HAASS: Just—just so I understand it, there's this opposition is grounded in essentially then in an international legal positions, that this doesn't check that box, and therefore you can't.

CARTER: Yes, and—and there's a whole second set of concerns relating to detainee treatment and interrogation, and I should probably defer to Marc, who's written a lot more on this, but there's a fundamental objection to both perception and reality there, which is probably been more apparent publicly, but it's this legal argument that is the most solid, it's the one advanced most in bilateral discussions of the type that Matt's been discussing.

THIESSEN: Yes, I—I agree that's the fundamental issue, is—is are we engaged in a war? Or are we engaged in a law enforcement operation? You know, you keep hearing the objection to Guantanamo, is well, how can you keep people, hold people indefinitely if they haven't had the chance to right to a trial, and haven't been convicted of a crime. And, the answer is, they're—they're enemy combatants. They're not criminals.

I'm, in a few months, I'm taking my 87 year old mother to Poland, to—for the Warsaw, the 70th anniversary of the Warsaw Uprising. She was a young soldier, at 16 years old, who fought against the Nazis. She was captured. Taken to Germany, and was a prisoner of war. And, under international law, I don't recall that she ever had a lawyer who was able to challenge her detention. There is no right to challenge your detention under—for enemy combatants in international law.

So, actually, Al-Qaeda terrorists have rights that my mother, as a prisoner of the—of the Nazi regime didn't have. But, the fact that they could hold her was completely accepted. You can hold enemy combatants through the duration of the war. So, to the extent that we have indefinite detention, the indefinite part of it is decided by Al-Qaeda.

Last I checked, they—there's no signing ceremony on the deck of the USS Missouri, where they've—where they've surrendered to us. And, far from surrendered to us, they are—there was just a video released a week ago in Yemen, of them having an open air rally, completely unafraid of a drone strike, where the second in command of Al-Qaeda urged them to attack the United States. So, they're not surrendering any time soon.

As long as they're not willing to surrender, we have the right to—to detain their—their captured enemy combatants for the course of the conflict.

HAASS: We have a—what, though, how does one defend the practice of detention without trial? I could see where collectively you could say it's naive to think that the struggle or conflict or war with Al-Qaeda is over.

But then you still have individual cases, and since you haven't had a trial, what is the legal and moral justification for holding indefinitely an individual without trial? Is there at least, in principle, the possibility that this individual is being wrongly held and then how does one therefore justify, again, if you will, open ended detention without trial?

THEISSEN: You're asking me?


WAXMAN: Yes, and so, I mean, I do think ...

"The objection to Guantanamo, is well, how can you keep people, hold people indefinitely if they haven't had the chance to right to a trial, and haven't been convicted of a crime. And, the answer is, they're enemy combatants. They're not criminals."
—Marc Thiessen

THEISSEN: I could answer.

WAXMAN: First of all, I would add, you know, I—I do think many of our allies have a legal objection, I think also, in many cases, have a—a—a moral and—and strategic objection, though I have found that there's often a difference between where public opinion is, let's say in Western Europe, and the kind of message that we receive privately from leadership in those states where I think they'd actually kind of like the issue to go away. It—it doesn't cause the same degree of friction that it did during the—during the Bush years.

I do, actually, agree with this idea that, as a legal matter, it's a very reasonable argument to say we are in an armed conflict, a war with Al-Qaeda, and therefore ought to be able to detain—capture, detain and hold for the duration of hostilities those enemy fighters as in other wars. And, by the way, this is an argument now that all three branches, and both parties' leadership in this country, have bought into.

It's also, though, an argument on—on which, whether—no matter how persuaded we are, many of our allies are not. And I think, Richard you've touched a couple of the reasons why they are unpersuaded by this. I think one reason is that this idea of misidentification-- that in a conventional war, the United States against the German army, not in every case but in most cases, there would be a clear indicia of who is or who is not an enemy fighter, and we didn't worry about false positives as much when it came to detaining for the duration of hostilities.

I think the other issue is one of duration. That it is true that many conventional wars go on for a very long period of time, and we don't know during the course of those wars when they're going to—to come to an end.

But I think the likelihood that the conflict with Al-Qaeda has no foreseeable end point, at which time there would be a traditional exchange of prisoners, I think that's another reason why this idea of treating enemy fighters as belligerents who can be held without trial till the end of the conflict, I think that's one reason why it's very unsettling to many of our partners around the world.

HAASS: I'm—actually I'm going to jump in here, because I'm mindful of the time, so I want to get on the table some prescriptive issues. OK? So, let me jam ahead here a little bit. What about the—let's look at some of the options, and I've got at least five or six, as opposed to simply the status quo, or shutting Guantanamo down, or if you will reopening it to new people.

It seems to me you've got three things that are kind of Guantanamo-specific. But, let's—beyond those, I can think of a few others. What about the idea of trying them in the United States, either in civilian or—or military courts? What—what should we think of that—that option?

CARTER: It's a well-worn path that's been used for hundreds of terrorism detainees in the federal court system. You currently have two or three times more terrorism incarcerated detainees or convicts at this point in Florence, Colorado and Terre Haute, Indiana than you have at Guantanamo. Federal courts here in Manhattan and Brooklyn and elsewhere do a fantastic job with this.

The problem is that it does reflect a shift, a normative shift in U.S. policy that you would have to acknowledge, which is away from a war time tool, that's appropriate for war, and for detainees of this type, to more of a law enforcement model. I think it's the right way to go. I think we get ...

HAASS: To put them into the civilian—to put them into a federal?

CARTER: You get more convictions, longer sentences, better intelligence cooperation because of the plea bargain and other mechanisms in a civil—civilian system, and you avoid the catastrophe that military commissions has become, which has been on display in the New York Times this weekend, which is, it's simply a new process that cannot work as designed.

It could be a good process, it could be a good system, but it is not working and we'd be fools to not use this incredible, hundred year old system that we have in our civilian justice system.

HAASS: And is there anything—before I ask the others what they think—is there anything in our law or anywhere else that would preclude—is it a matter of policy or law that this is not the practice? I.E. trying people in -in civil courts, criminal, if you will, or in the federal courts, rather, and then if they're found guilty, then putting—sentencing them and incarcerating them in—in federal prisons. What precludes that option from happening?

CARTER: There's an idea in international law, that if you're a combatant on the battlefield, you have immunity from those acts that you commit on the battlefield. But, as Marc has said, these are unprivileged belligerents.

These are folks that break the laws of armed conflict. And the traditional response is to try them according to domestic law, with all the rights and protections thereof. There is nothing in our law that would preclude us from this option, except for the statute that Congress has passed. This is in some ways ...

HAASS: The statute—pardon my—the statute that Congress has passed precludes taking people through the federal court system? Or—or incarcerating them in federal ...

CARTER: Bringing them to the states for prosecution in the federal system. But this is an inherently presidential thing. This is the very essence of prosecutorial discretion. What system do I want to use? What charges do I want to bring? This is the very essence of our president's power and I believe that it's something that he could do if he wanted to.

HAASS: Last question, and I'll open up to the others. Would this, if the United States were to put this approach into practice, would this take care of most, or all, of the European objections?


HAASS: Marc?

THIESSEN: Number one, the reason you use military commissions versus civilian courts is because the—the way that you capture these people is different than if a police officer busted down a drug—drug kingpin's house in Manhattan. When our Special Forces bust down doors in—in Karachi or in Afghanistan, they don't secure the perimeter with police tape, they don't have chain of custody for the evidence.

They are trying to get intelligence and exploit it as quickly as possible, to turn it around for—for another military raid to get other guys before, trying to get inside the information cycle of the enemy, so that you can exploit the intelligence before the word has gotten back to others that they have been captured and that they're—they're vulnerable.

So, we don't put a—we don't want to put our special forces and our troops in a position where they have to act like New York City police officers, rather than special operations forces trying to kill—kill or capture an enemy in—in a time of war.

So, if that's the case, then you need a different type of legal system that allows for fair trials, but also takes into account the realities of the battlefield, that this is not a criminal—this is not a—this is not a criminal raid, it's a military raid in which most of these people are captured in.

But, second, I—I think it's the, if you'll forgive me, the wrong question, which is I'm not terribly concerned, at least in a primary sense, with how we dispose of the people we have.

The—the primary concern we should have with Guantanamo, and generally in the War on Terror, is—is—and this gets to the bottom of the legal, the law enforcement versus intelligence paradigm, war paradigm, is that we should be focused on getting intelligence to stop the enemy from attacking us.

And, so, we're—we spend a lot of time worrying about how we're going to try them, what system we're going to do, we're not getting intelligence today in the way we were in—in the past.

I mean, if—if you think about, Richard, there was—there was, I think everybody saw it in the papers about a week ago, there were picture, satellite photos of 40,000 Russian troops massing on the Ukrainian border. And, we could tell, using that intelligence that Russia may have been preparing to—to send in forces into Ukraine.

When your enemy is 19 guys with box cutters, who infiltrate a free society, hide among us and—without wearing uniforms-- and go and hijack planes and fly them into buildings, satellite images don't help you. You can't—they don't have armies, navies and air forces.

So, how do you get intelligence to stop terrorist attacks? And the answer is, the only way to get the intelligence is to have the terrorists tell you what their plans are. There are three ways to do that. They're the 'Three Is." There's infiltration, interrogation and interception.

So, you can—you can infiltrate Al-Qaeda, send double operatives in and try and get them to—to trust you and—and give you information, and we've done that with some success. We've had backfires like we did in Afghanistan, when they—when a double agent blew up a CIA base. But, so—so that's—it's very hard, Al-Qaeda's a tribal ethnic organization, that is very distrustful of outsiders. Very hard to infiltrate.

The second is interception. The Snowden revelations have decimated our ability to intercept terrorist communications. Perfect example, New York Times report a couple of weeks ago, exposed the fact that we had developed a system to break into computers that were not connected to the internet. So, the terrorists believed that if they were not in—in the grid, we couldn't monitor their communications.

And, we had actually figured out a way to do that, and that was exposed. And, so the reaction of the terrorists is well, we're not going to use those computers anymore. So, we are giving the enemy information how to avoid interception. So, interception's not gone, but it's compromised.

So, the last thing is interrogation. You've got to get them to sit down and tell you the information, what their plans are. And, actually, even if you have interception and infiltration, you still need interrogation, because interception is by nature a passive activity. You're listening into the conversation and hoping that the terrorists tell you something useful. Interrogation is interactive.

You can ask them question. You can present intelligence to them, and get them to react to it. You can take something that one detainee said and use it to—to get another one to tell you information. And, also, you can find out they speak—when they're—when you have interception, they're speaking in code, because they know we're listening.

What are the code words? What are the voices on phone calls? We used to play phone calls for KSM of-of intercepted communications, and he would tell us who the voices on the phone calls are and what the code words were. We've completely lost that capability. We do not—we do not interrogate terrorists any more. Period. Full stop. At least high value terrorists. We've stopped doing it.

We kill them with drones, which is fine as it goes, because you're taking bad people off the—off the grid, but when you vaporize a terrorist with a drone, you vaporize all the intelligence in his brain. You vaporize all of the pocket litter that he has. So, we need to find a way to start interrogating people again, and getting information.

WAXMAN: I'd say criminal prosecution in civilian courts absolutely should be an option that the president has at his disposal. It think it was a terrible mistake for Congress to close off that—that option, as a tool for dealing with some of the detainees at Guantanamo. There's no good ...

HAASS: Just so I understand, and was the principle reason we didn't have convicted people sitting in Kansas? Or was the principle reason that we were worried they couldn't get convicted, given the protections we provide under U.S. law?

WAXMAN: It's more of the first, because there was never any discussion by—that, and I was going to get to this in a moment—that criminal prosecution would be the only avenue, the only tool that we would use for incapacitating, detaining terrorism suspects or Guantanamo detainees. I think the objections were really two fold. One was a security concern slash not in my backyard problem of moving them into—into the United States.

I think another is what I—I think is a misguided argument that one must make a choice: that we are either engaged in a war against Al-Qaeda or we are reliant only on law enforcement tools. And, I don't think there's a good legal argument, moral, policy, strategic argument why you can't use both simultaneously. And, by the way, that's what the George W. Bush administration did.

It's often forgotten, I think, by members of Congress who seek to close off criminal prosecutions that the Bush administration brought Zacarias Moussaoui, the alleged 20th hijacker, the shoe—the—Richard Reid, the shoe bomber. The Bush administration used criminal prosecutions as a—a tool.

I don't agree that, or don't believe that criminal prosecution is—is exclusive of intelligence gathering. I think, in the right circumstances, criminal prosecution, criminal investigation often yields tremendous amounts of information, because you can interrogate criminal suspects, and often criminal suspects are turned.

The last point I'd make, though, is in defending criminal prosecutions as a tool, it has been a mistake among some proponents of closing Guantanamo that you could deal with all of the very dangerous detainees at Guantanamo simply by moving them into the criminal justice system.

The Obama administration, like the Bush administration, looked at that and found that there were many cases, dozens of cases at Guantanamo that probably could not be successfully prosecuted, notwithstanding the very, very, very high likelihood that these are extremely dangerous terrorists, who would very eagerly return to the fight.

HAASS: So, and in those cases, for whatever reason, you determine that individual acts could not be successfully prosecuted either because of the nature of the evidence, or how it was gathered, or what—what have you. In your thinking, then, what—what other approaches ought to be there? It's almost like you're --- you're suggesting a kind of a la carte approach. One approach ought to be criminal. What—what else is on your—is on your menu?

WAXMAN: I—I would put on—on my—well, just to start, and as Marc said, you know, one—one important thing to—to keep in mind is, we've mostly been talking about options for dealing with somebody who's in our custody. And—and that's one question we need to confront: should we be taking custody of these people to begin with? Two of the alternatives: One is—is killing through targeted killing; another is detention or prosecution by third parties, other countries.

If somebody is in our custody, there have really been at least three main tools that have been tried over the last couple of years. One is criminal prosecutions, I—I think that should be a tool. Another is continued detention under the laws of war.

And—and then the question is what kinds of review procedures and protections should somebody be given if he's not going to receive any trial at all. And, then the third possibility that we haven't talked too much about is military commissions, military trials. My own view of military commissions ...

HAASS: And—and where would those?

WAXMAN: Oh, those, at least to date have been conducted at Guantanamo, with the idea being that the trial—the military trial would be done at Guantanamo, and if convicted, an individual would probably serve out the sentence at Guantanamo or perhaps some other arrangement negotiated with a home country.

I my view, military commissions are a—do have a historical validity in American law, in international law. I think as currently constituted by Congress and the Bush administration, I'm sorry the Obama administration, military commissions are legal as a matter of domestic law and international law.

My biggest worry is that, to date, they've been very, very difficult to get off the ground. We're talking about really establishing a new kind of trial system, and there's been some improvement, but we have found it very, very difficult to get cases from the beginning to an end state.

HAASS: Let me just introduce one last set of things, which is the overseas options. And it seems to me it applies both to people at Guantanamo or people not there. You could say for those who are already at Guantanamo, the 150 or so individuals there, just basically sending them either to their country of origin or to the country where a crime was allegedly committed.

So, you've got those options. And, then if we capture someone overseas, then it's, again, those options, rather than bringing him or her to Guantanamo, it would mean sending them back to either the country of origin or citizenship, or the—the locale where the crime was committed. How much should—should that set of options, if you will, the overseas options, to what extent ought those to consider prominently? And, after this, I'm going to open it up to our—our members.

CARTER: They're fraught. Very few allies have perfectly aligned interests with ours. Very few countries have the apparatus in place to deal with detainees of this type, and do so in a way that's conducive to our interests.

There was a lot of attention given a few years ago to the Saudi rehabilitation model, the Saudi Arabian government brings in detainees from their criminal justice system, furloughs them with an intense system of parole within their social context. It actually works reasonably well, but within that social context.

I'm skeptical that it could work for other detainees. I'm skeptical it could be grafted to Yemen, and made to work there. And, other similar projects don't seem to have that good of a track record. So, we're really left with an imperfect option, working with these allies and other liaison services, particularly when many of these countries are unwilling to really drop the hammer, and put these people in detention for what might be a lifetime.

THIESSEN: I agree with that. The—the number two leader of Al-Qaeda in Yemen, which is the terrorist network that probably threatens us the most, is not only a Guantanamo alumnus, but a graduate of that Saudi detention—rehabilitation program.

CARTER: It was an advanced degree.

THIESSEN: It was an advanced degree, exactly. So, we've—we've released a lot of bad people in the process of bending over backwards to try and—to try and make sure there are no goat herders still stuck in Guantanamo Bay.

There weren't very many to begin with, but now that we're down to this 150 or so, I mean, we're dealing with the—with the exception of a few, the Uighurs and a few other people, we're dealing with the worst of the worst.

HAASS: This is the hard core.

THIESSEN: These are the hard core. These are people who, when, I mean they on a regular basis, and a daily basis, attack their guards with cocktails of—of feces and urine, and the rest. They chant at them and sings songs extolling Osama Bin Laden and the 9/11 attacks.

These are people who, if they had a chance to meet you, they would slit your throat without two seconds warning. These—these are very, very bad people. And, so, the idea of releasing more of these people, especially when the recidivism rate of the people we've already released is—is reaching between those who we know, and those who we strongly suspect have returned to the fight is about 27 percent, and growing. You release some of these people, it's going to go even higher.

HAASS: Just so I understand, when you sort of talk about this alumnus who's gone on—gone on to do bad things, this individual was released, and went through the legal, or ...


HAASS: ... rehabilitation quote unquote "processes" and essentially then ...

THIESSEN: Released by the Bush administration, so we -we in the Bush administration ...


THIESSEN: ...might have been Matt's fault.


THIESSEN: So, we've released some really bad people back—back to the fight, and there are people, and even some of the most, you know, the most celebrated cases by the left, I mean, Moazzam Begg, who was a Guantanamo detainee, a British citizen, was finally released back, became this big campaigner against Guantanamo Bay.

Just a few weeks ago he was arrested on terrorism charges, for helping Al-Qaeda in Syria. So, you know, even some of these most celebrated people, who are were these victims, who made all sorts of allegations—false allegations of torture in Guantanamo are -are back out there. So, the—that's a problem.

HAASS: You get the last word, then I want to open it up.

CARTER: Yes, I—I would just add, I did work, when I was the Deputy Assistant Secretary of Defense for Detainee Affairs, I did work on processes for reviewing detainees for possible release or transfer to—to other countries, and I would say that during the Bush years, when most of the Guantanamo detainees were released or transferred, there were errors in both directions.

I think there were individuals who were captured and detained who shouldn't have been. And there were people who were released, who—or transferred who shouldn't have been. I also agree that there have been, the record is mixed in working with home countries or third countries to develop systems into which they could be securely placed.

It's notable that many of the remaining detainees at Guantanamo are—are Yemeni, and we've, for years, had a difficult time because of the—the civil war in Yemen and difficulty in obtaining the kind of cooperation from the Yemeni government. We've had a hard time figuring out a good—a good—a solution for them.

I would just note, just one last just quick point is during the Bush administration, it was understood by the senior leadership that there was some risk in releasing or transferring detainees, but there was—there were—that's in part because there were costs, and not just moral costs to holding people, but also costs to our foreign policy and our counterterrorism policy.

The reason—one reason why I think some very dangerous people were released back to the U.K. was because our closest ally, the British government and Bush's closest ally, Prime Minister Blair, had a huge domestic political challenge because we were holding British nationals. It was a major point of friction that occupied not—the case of nine detainees occupied way more attention at the head of state level than it ever should have.

HAASS: Just so I understand, though. Our concerns about releasing individuals to foreign countries is the inference that should be drawn that we're worried that they're too lenient, and or too many people who are guilty end up on the loose again?

Or is the concern from the other side that some of these governments will be, if you will, quote unquote "too rough." There'll be human rights abuses ...



WAXMAN: Yes, it's both.


HAASS: Just so I understand. OK ...

THIESSEN: And a third one which is, to the extent that you're talking about captures of new people, is that they're not as effective in interrogating them as we are.

That we—that one of the things we did after—after 9/11 was we realized, in the Clinton administration there had been a policy of extraordinary rendition, outbound rendition, where people would be captured and sent to the intelligence services of foreign countries, who would interrogate them with varying levels of—of humanity.

And—and they were—the interrogation often didn't produce valuable intelligence. And, so we made the decision after 9/11 that this was too important to outsource. And that we needed to do it ourselves, both for in order to insure that—that the techniques were not the same that might be used by the Egyptian military or other countries. And, also to make sure that the terror interrogations were effective.

And also to make sure, because part of—one of the most important parts about interrogation is being able to expose intelligence that you don't want to get out to the person who's being interrogated in order to get more information, and you can't do that if they're in the custody of a foreign intelligence service, because of the danger of that information getting out.

HAASS: OK. Lots of rich analysis on the floor. Let's open it up. Let me know, and just wait for a microphone, introduce yourself. Yes, sir? Keep it short, and we'll try to keep our answers brief and we'll get as many people in as we can.

QUESTION: Earl Carr, thank you. I was curious to know that no one mentioned the—the International Criminal Court as a—as a viable option. I would be curious to know what your views on that are? And kind of related to that question, I believe it was Marc, you mentioned that there's kind of some hidden, if an enemy combatant is caught, that there is some hidden rule that they're—that the crimes that they committed on the battlefield would be kind of absolved.

Who—who determines that? And—and where did that come from?

THIESSEN: I don't think it's that the crimes that they committed on the battlefield are absolved. It's that if you capture somebody, I mean, in our view, when we've switched, made a very conscious decision at the start of the Bush administration after 9/11 from the law enforcement approach to—to terrorism that the Clinton administration had followed to an intelligence, military driven approach, your first goal is to get intelligence as quickly as possible on pending attacks.

So, you're—whereas if you're interrogating someone from a law enforcement perspective, your goal is to get—is to get evidence that you can use, and that can be preserved to be used in a criminal trial to punish that person for what they did.

We were less concerned with punishing them than we were with getting intelligence to stop future attacks. And, so that allows both a—both for a broader array of techniques for interrogation, and conditions for interrogation, and then, afterwards if you want to try them, you give up—you may have to give up the use of some of that information that you got for intelligence purposes for a criminal trial.

So, it's not that they're absolved of it, but that's not your primary concern going forward.

CARTER: It may have been my comment on combatant immunity, which is a principle in international law and the law of armed conflict that, you know, if you're a U.S. soldier, fighting World War II, and you killed Germans, the German courts are not going to haul you and prosecute you for murder. You're a lawful combatant doing your job in wartime. But, I mean, I can't let that go unchallenged ...

THIESSEN: Sure, go ahead.

CARTER: The jury's still out on the efficacy of our own interrogation programs. I think—I'm anxious to read the Cisy (ph) Report, when it comes out. My own experience in government left me very skeptical of the value of these programs, particularly as we've kept folks in detention for so long, and the value of other programs have gone up.

Our SIGINT, the—the NSA programs that we read about so much in the papers are dramatically more effective now than they were 12 years ago. They may be a better arrow in our quiver now, today. And, then the last thing is you mentioned this divide on the battlefield, again, going back to my experiences in government, including on the battlefield, you—you minimize the role that forensics and intelligence collection and data collection and exploitation plays into today's soft world.

And, it's arguably the case that the special operators in Afghanistan, Iraq and elsewhere do a better job of forensic collection, exploitation than the NYPD, and we ought to get the benefits of that too.

HAASS: What about the ICC? Does it have any role?

WAXMAN: The ICC has very limited—the International Criminal Court has very limited jurisdiction that doesn't really apply, I think, in—in—in the case of these particular individuals.

I think even if you were to try and come up with an international tribunal as a—as a mechanism for dealing with it, you—you probably end up with similar kinds of gross inefficiencies and capacity problems that have—that have plagued some of the other processes.

HAASS: OK. Let's get some more. Jim Ziron (ph).

QUESTION: (OFF-MIKE) I need a microphone.

HAASS: You need a microphone.

QUESTION: I need a microphone. Thank you. Putting aside for the moment, a 149 of the 150, you have the poster child, a case in point, Khalid Sheikh Mohammed, was the architect, allegedly, of the 9/11 conspiracy.

Certainly, if the charges are true, the worst of the worst, and we considered trying him in a civilian court, and Obama at the end tilted in favor of the military tribunal on the premise that it would be too expensive and too difficult to provide security for the trial in the Southern District of New York.

Now, that's, of course, debatable because he might have been tried on Governor's Island or at an air force base or at a military base within the Southern District of New York, where, really, the crime occurred. So, my question is, was this a wise decision on the part of the government? And, really, wasn't the civilian court the preferable tribunal?

We have 225 years of established jurisprudence, and now you're going to have a military trial with all sorts of improvised rules, which may or may not comport with due process of law. He'll be sentenced to life in prison, and the death, there'll be appellate litigation over the processes that were involved in the trial, and then it'll be a subject of international debate forever as to whether we comported with international norms of human rights in conducting a trial of this kind.

Wouldn't we have been far better off in relying on the civilian court, in this case, and probably in a lot of the other cases of the 149 who are under detention?

HAASS: Perhaps, I think two people might agree with you here, and one might not. So but ...

THIESSEN: You'll go to the not, or the agree?


THIESSEN: The answer in short is no. I disagree with that. Number one, Khalid Sheikh Mohammed, before—before the, first of all the Obama administration did, in fact, announce that they were going to try Khalid Sheikh Mohammed in New York, and was under intense backlash, both from people here in New York City and from people across the country about that, that they backtracked on it and gave the—the justifications that you cited.

But their initial instinct was to try him here in New York.

The fact is, that before they announced that decision, when—when—when President Obama came into office, Khalid Sheikh Mohammed had offered to plead guilty and proceed straight to execution. Now, there's arguments whether or not under the—the military commission process that could have been accepted, but he was ready to go straight to the execution and become a martyr, and all the rest, and he would have done it without having the platform of trial in New York City to do it.

The fact is, if you bring Khalid Sheikh Mohammed here to New York, what—what is a trial for Khalid Sheikh Mohammed? It's a propaganda tool. It's an opportunity for him to stand up on his soap box, and rally jihadists from around the world, after -after having been captured, taken to a CIA site for a period of time, disappeared there, brought into sea at Guantanamo, also out of sight, to emerge in flowing robes as strong as he ever was, to preach the jihad in an—an American courtroom, in front of the international media and use that trial as a—as a recruiting tool.

If you want to talk about a recruiting tool, the recruiting tool for Al-Qaeda. When we can simply try him under a process that also has over 235 years of precedent, because George Washington used military commissions, and—and under rules that will not allow him to have that platform in the greatest media market in the world, and have a just trial and—and a hopefully a conviction.

CARTER: So. I disagree. I mean, law is a tool of the strong. It's a tool of the government. It would be a propaganda event, but for us. It would be an example of where our system is stronger than he is, and a chance to give New Yorkers the justice they deserve.

I think the best policy outcome in this case is not a military commission that seems to stop every three months at any procedural obstacle. But it's a speedy, swift, trial in federal court that delivers KSM to a prison in Florence, Colorado for the rest of his life, and never to be heard from again.

HAASS: Yes, ma'am. At the second table here. We can probably get you a microphone fairly quickly, if the traffic allows.

QUESTION: Thank you, I'm Cora Weiss. I'd like to follow up on that question, and on your answers. I gather, either today or yesterday, I don't have the date, but Major Jason Wright, who was on the defense team of Sheikh Mohammed is resigning from the army, and is accusing the army of trying to force him to leave the defense, after he has spent three years on it.

And he's claiming that the military commissions are broken. Can you comment on that? And let us know what's going on? And where is Mohammed going to get another lawyer.

HAASS: So, let me just sort of follow up with that? Why, if military commissions were first established by George Washington, why is it such a—an ineffective, or still such a—why are we forced to improvise 235 years later with military commissions? Why aren't they, if you will, more finely honed and oiled?

CARTER: So it's an ad hoc tool that is constituted by the convening authority at each moment. The Continental Army did so. General Winfield Scott does so in the Mexican War. You see them in Civil War. You see them again at various periods of conflict. These ones came into being in 2001. They've been modified a series of times since then, but they're still in in their infancy relative to other systems of justice.

THIESSEN: And—and they've been challenged by—by people who oppose them, and who have wrapped them in procedural—in procedural hurdles as well. There was also, for a long time, in the Bush administration, there was—it took a Supreme Court decision before they were released to—to—to go forward.

So, it's been—it's been --- it's been, it's like saying your system doesn't work because the people who oppose your system have tied it in knots, and so therefore we should go back to the system the opponents want. The hurdles are becoming—as the hurdles are removed the—the process can go forward. But, basically people are coming with their—with their goal, which is to tie up the military commissions in knots and then saying, you see, the commissions don't work. We need to go to civilian trials.

HAASS: Matthew, you want to weigh...

WAXMAN: I—I—one point I would just add, I mean it's important to keep in mind the military commissions that are currently being conducted now, were established by the Democratic controlled Congress, and endorsed by the current Democratic president—Democratic party president. They've faced a big challenge, though, in that they got off on a very bad foot during the Bush administration.

I think the process for establishing them was rushed through in a way that was not fully vetted. And, they—they very quickly acquired, whether justified or not, they acquired a very sticky reputation internationally for having been created as a short cut of—of justice and especially a way of shielding from public view abusive interrogations, and things like that.

That reputation, whether justifiably or not, has stuck, and so I think continuing with military commissions does contain this—this sort of public relations cost that's going to be very, very, very difficult to get out of.

One point I would just add is a point that I thought of in Jim Zirons' (ph) question, you know, the administration ought to be thinking ahead, several steps, as it—as it decides what to do with remaining detainees at Guantanamo.

One thing that the administration has not talked about, there are good reasons why it doesn't want to, but if it is worried about propaganda value of—of Guantanamo, one interesting, I think, very likely scenario, if the administration goes through with either criminal trials in civilian courts or military commissions, is that it is likely to sentence to death some of the detainees at Guantanamo.

If you're worried about Guantanamo now being a propaganda and recruitment tool, and you're worried about now Guantanamo being a source of friction with our European allies, most of whom regard the death penalty as barbaric and illegal, wait till we start executing some of the detainees.

HAASS: Does anyone have any comments on the specifics of that last question, about this individual?

CARTER: As a former army officer, never underestimate the capacity of the military personnel system to get something wrong.

HAASS: Yes, sir.

QUESTION: Hello, my name is Evandro Evello (ph). I wanted to ask, from your vantage point, the governments of Colombia and Uruguay have recently announced that the United States has asked them to take in Guantanamo detainees.

Why would these two countries be selected? And which prison—what would be the process of deciding which prisoners are released to which countries? I understand Colombia has yet to decide and Uruguay has already accepted.

WAXMAN: This was something that I worked on a bit in—in government. The short answer is if we can find other countries who are willing to take detainees off of our hands with sufficient assurances, and as Richard said there are really two sets of assurances that are important. One is adequate security assurances, and the other is adequate humane treatment assurances.

But it's long been the policy of the Bush administration and now Obama administration that for many of the detainees, not all of them, but for many of them if we can find some other country to take them off our hands, and we can coax them diplomatically or with other carrots to do so, great. And, you're right, some of these—some of these particular destinations have no particular relationship to the war against Al-Qaeda; they just may be the ones willing to do it.

QUESTION: Well, I assume that's for the weaker, so these are people who have been found ...

WAXMAN: In—in some cases.

QUESTION: ...not to be a threat, whether you agree with that or not, but they can't be sent to China for (inaudible).

CARTER: No, there's, I mean there's a much broader category, I think there were 70 people identified at last count, where Special Envoy Cliff Sloan, formerly Dan Fried, were going around the world, trying to convince countries to take these folks, and for a variety of reasons they determined it in their interests to do so. Usually, it's part of a broader package of counterterrorist carrots and other things.

HAASS: Yes, ma'am.

QUESTION: Hi, my name is Contessa Verbone (ph) from the New York Times. I'd like to ask the panelists, do you think most of the detainees, or all of them, could be released when Afghanistan war ends this December? Why or why not?

HAASS: Just to be clear, the Afghanistan war, there's no date by which the war ends. What will, at some point, happen is, U.S. troops will draw down, I believe, and we'll negotiate a status of forces agreement of some sort another with a successor government, but I would, unfortunately, expect a conflict in Afghanistan to continue for years, if not decades to come. What I don't know is the specific level of the conflict.

CARTER: I think that's right, but this is the $64,000 question in this space. For some of the detainees who were captured on the battlefield in—in Afghanistan or Pakistan, their detention may be suspect. And the next time they go to federal court on a habeas petition, they may prevail. Justice Kennedy? No.

WAXMAN: Hamdi?

CARTER: Breyer, in a dissenting opinion from a cert denial, which, sorry for the legal gobbledygook, essentially fired a shot across the administration's bow this week saying if you think the AUMF, the Authorization for the Use of Military Force that has justified detention to this point will continue ad infinitum, and continue after the wars, you might want to rethink that.

I think the administration is at least convinced as to a few of the detainees that their detentions can't be justified beyond the end of our involvement in Afghanistan.

HAASS: OK, misunderstood the question.

WAXMAN: And I—I would just add, I think as we think about options for the way forward, it's important to think about possible, sort of game changing intervening factors. One possible intervening factor is that the drawdown of U.S. combat forces in Afghanistan could give rise to new legal arguments on behalf of detainees at Guantanamo.

The executive branch has been surprised before with—with the kinds of holdings that -that judges have come back with in—in the detention cases and litigation and results of litigation could also be a prompt for Congress to revisit some of the—some of the existing detention authorities that the executive branch is relying on.

CARTER: But it's worth noting the AUMF is broader than the wars in Afghanistan and Pakistan. That war, that shadow war against Al-Qaeda will likely continue outside of those countries. And we will go into uncharted waters at that point, to test the detentions of all of the other detainees that are not directly connected to the battlefields of each place.

WAXMAN: And that—that certainly has been the executive branch's argument to this point that it has prevailed on again and again in courts. I think the question is whether you get further and further from 9/11, are federal judges going to be increasingly skeptical of that argument. That—that's an open question, but a possible intervening factor in this.

HAASS: so, let me just sort of bring it to a close then with two last questions. One is here were are, President Obama has two and three quarters years to go in his second term. Do any of you believe that at that end of that term Guantanamo will be closed?



CARTER: Maybe. Yes.


THIESSEN: Not a chance.

HAASS: And, if that were the case, assume that the—the two and a half votes that it would not be closed by then, so imagine then it's now early 2017, and the 45th president of the United States takes office, and you were called in to make a recommendation to the 25th—45th president about what to do about Guantanamo. What is it you would recommend? Let's go, I'll start the opposite way. Matt?

"The drawdown of U.S. combat forces in Afghanistan could give rise to new legal arguments on behalf of detainees at Guantanamo."
—Matthew Waxman

WAXMAN: Well, I mean, I think my advice to the remainder of President Obama's term and to the next president would be you need to make—there really is a—a fish or cut bait kind of choice to be made, and it doesn't make sense any longer to continue to just make speeches declaring an intention to close Guantanamo.

If you want to do it, you need to a. come up with a comprehensive plan for doing so that you can defend to Congress and—and the American people, and b. be willing to spend a good deal of political capital to do so. I haven't seen either of those two things from the Obama administration.

The alternative, or an alternative is you can continue with the status quo. I would strongly support using some political capital to—to defend, as I said before, a range of tools. Some detainees would be held as enemy belligerents, captured in ongoing armed conflict. Some might be prosecuted through military commissions.

Some should be brought to criminal trial. I assume one point that Marc's going to get to, that I think any president also needs to confront, is we shouldn't just think about the detention problem. The Guantanamo problem is dealing with the 150 people who remain there now. We will continue to face the possibility, and likelihood, of taking custody of Al-Qaeda suspects in the future, and we don't yet have a clear and sustainable policy for how we're going to deal with them.


THIESSEN: My advice to the next president of the United States would be use it. The purpose of Guantanamo Bay, from the initial, was not to be a detention center, it was to be a strategic interrogation center. Because, as Don Rumsfeld said at the time, it's the least worst place. There's lots of problems with Guantanamo Bay, but it's the least worst place. There's no alternative.

And, here we are, three quarters of the way, two thirds of the way through the Obama administration, and he hasn't come up with an alternative. We are—we are killing terrorists rather than capturing them, and we're killing them because we have nowhere to take them. In the—in the six and a half years or so that President Obama has been in office, we have captured exactly two senior Al-Qaeda leaders.

HAASS: Five and a half.

THIESSEN: I'm sorry, five and a half. We've captured exactly two senior Al-Qaeda leaders and not killed them with drones and taken them into custody. They were both put for brief periods of time on a Navy ship, which CIA—former CIA director Mike Hayden calls a gray site, as opposed to a black site. And—and ...

HAASS: (inaudible)

THIESSEN: ...and then brought into—brought to New York for—for trial in the criminal justice system. The last one was Anas al-Libi, who's a senior Al-Qaeda leader captured in—in Libya. He was put on a ship for one week and then brought into the criminal justice system. Even if he was spilling his guts, there is no possible way you could exploit everything that he knows.

This is a guy who'd been with Bin Laden and Zawahiri from—in Sudan in the 1990s through Afghanistan. He was in Teheran, so he knows about that—that Al Qaeda's operations there. Absolute treasure trove of information. If he was spilling his guts, you couldn't get everything he knows in one week.

So, we are vaporizing intelligence, and this administration has dined out on the—as much as they criticize the Bush administration, to this day they're using the intelligence produced by the CIA interrogation program. They're using the intelligence produced by detainees in Guantanamo Bay, they're just not replenishing it.

So, the next president's going to come in without the benefit of all the intelligence that was produced from detainee interrogations under his predecessor, the way Obama did. We need to stop killing terrorists, we need to start capturing them and we need a place to put them, and the least worst place to do that is Guantanamo Bay.

HAASS: Mr. Carter.

CARTER: Well, I'm—I'm not so down on our intelligence collection right now. I think it's still pretty robust, but I think I'd ask two questions. One, what party are you from, Mr. or Mrs. President in 2017? Because that's going to make a difference, and who's in Congress.

And, two, at that point in time, does the risk of keeping Guantanamo open, with all that entails, justify, I'm sorry, is the risk of transfer or release greater or less than the risk of keeping it open? I think we've crossed a tipping point ...

HAASS: Do you mean risk or do you mean cost of keeping it open?


HAASS: There's not a risk of keeping it open ...

CARTER: Right.

HAASS: ...there's a potential cost?

CARTER: I think we've crossed the tipping point where now we are spending more to keep that place open in dollars and costs, et cetera, and we're heading towards a Rudolf Hess problem, wherein five, 10, 20 years, we're going to get down to such a small detainee population, for such a large facility, that's not accomplishing anything for us, and we ultimately need to close it, because we can't afford to keep that open.

HAASS: This reminds me of when I used to teach at the Kennedy School, I used to tell the students there, the foreign policy students, that foreign policy's hard. The analysis is hard, to think it through, and then to think about implementation.

And this to me, if I were still teaching, I would use this as a case, from the decision early on people to close it without necessarily thinking through how you actually go about the implementation of it. And here we are, five plus years later, I actually agree. I think in two and a half, three years, the—the next president of the United States will inherit this situation. Again, choosing amongst, shall we say, difficult options, none of which is a cost or risk-free is likely to remain the reality.

I want to thank these three individuals for walking us through an important and difficult set of issues.

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