Why Guantánamo Must Be Closed

On Sunday, in his first television interview since winning the presidential election, Barack Obama repeated his campaign pledge to close the prison at Guantánamo Bay and to ban the use of torture by U.S. forces. Speaking on 60 Minutes, he explained, "I have said repeatedly that I intend to close Guantánamo, and I will follow through on that. I have said repeatedly that America doesn't torture. And I'm going to make sure that we don't torture. Those are part and parcel of an effort to regain America's moral stature in the world."

Ever since Obama began meeting with his transition team, leaks, gossip, and rumors concerning the new administration's plans to close Guantánamo, and the hurdles they will have to surmount, have been filling the airwaves and the front pages of newspapers. In an attempt to separate fact from fiction and to provide useful information to the president-elect, I'd like to offer my advice, based on the three years I have spent studying Guantánamo in unprecedented detail, as the author of The Guantánamo Files, the first book to tell the stories of all the prisoners, and as a commentator and analyst responsible for numerous articles on Guantánamo in the last 18 months.

As the president-elect and his transition team are no doubt aware, there are three categories of prisoners at Guantánamo: around 50 prisoners cleared for release or approved for transfer after multiple military reviews; up to 80 prisoners regarded as eligible for trial by military commission (the system of "terror trials" conceived in the office of the vice president in November 2001); and another 125 prisoners who have long been regarded as "too dangerous to release but not guilty enough to prosecute."

However, before looking in detail at what should be done with each of these groups of prisoners, it's important to understand how the administration came to hold prisoners without charge or trial for nearly seven years, and how it came to put some of them forward for trial in a novel and untested system for "terror suspects," and to examine the dangerously flawed manner in which the prisoners were seized, held, interrogated, and appraised as a threat to the United States.

9/11: An Excuse for Unfettered Executive Power

In the wake of the 9/11 attacks, the nation's response was mainly driven forward by Vice President Dick Cheney, former defense secretary Donald Rumsfeld, and their close advisers (including, in particular, Cheney's legal counsel, David Addington). According to the "new paradigm" dreamt up by these men, prisoners seized in the "War on Terror" were regarded neither as criminals nor as enemy prisoners of war protected by the Geneva Conventions, but as "illegal enemy combatants," who could be held indefinitely without charge or trial. The primary justification for this was a military order drafted by Cheney and Addington in November 2001, which also created the military commissions. Approved with virtually no oversight whatsoever, the military order was followed by a number of secret legal opinions, which attempted to redefine torture, and approved the use of "enhanced interrogation techniques" (the administration's chosen euphemism for torture) by both the CIA and the military in general.

This was repugnant enough, but what was even more disturbing was the theory that underpinned these innovations. The military order and the secret memos – and the "signing statements" that the president attached to a record number of laws passed by Congress, as recommended by Addington – served as a baleful example of the administration's quest for unfettered executive power, based on "unitary executive theory."

Embraced by Cheney and Rumsfeld during their formative years in Richard Nixon's White House, and also by Addington, who teamed up with Cheney to protect Ronald Reagan during the Iran-Contra scandal, the theory contends that, when he wishes, the president is entitled to act unilaterally, without interference from Congress or the judiciary. It is, of course, in direct contravention of the separation of powers on which the United States was founded, and critics have long insisted that it is nothing less than an attempt by the executive to seize the dictatorial powers that the Constitution was designed to prevent.

The "War on Terror" provided the supporters of "unitary executive theory" with an unprecedented opportunity to act without any oversight whatsoever, but what made it even more shocking in its execution was that it effectively allowed no questions to be asked about whether or not the administration's policies were misguided, overzealous, or just plain wrong.

Buying Prisoners for Bounties and Shredding the Geneva Conventions

Sticking to a mantra that whatever the president chose to do was a justifiable expression of his role as the commander in chief during wartime, the administration was unconcerned that, when it began collecting prisoners during the invasion of Afghanistan, many of those held as "enemy combatants" were seized not by U.S. forces, but by their Afghan and Pakistani allies, who were encouraged by bounty payments, averaging $5,000 a head, that were offered for "al-Qaeda and Taliban suspects."

In his 2006 autobiography, In the Line of Fire, President Musharraf of Pakistan bragged that, in return for handing over 369 terror suspects (who were mostly transferred to Guantánamo), "We have earned bounty payments totaling millions of dollars." When researchers at the Seton Hall Law School analyzed 517 unclassified summaries of evidence for the prisoners (documents laying out the Pentagon's case for holding them as "enemy combatants"), they discovered [.pdf] that 86 percent were seized not by U.S. forces but by their allies, which indicated that the probability of innocent men (or Taliban foot soldiers with no knowledge of al-Qaeda) being passed off as serious "terror suspects" was enormous.

Just as disturbing is the realization that, once they were in U.S. custody in the prisons at Kandahar airport and Bagram airbase, the majority of the prisoners who ended up in Guantánamo were never even screened to determine whether they should have been held in the first place. A senior interrogator at Kandahar and Bagram who wrote a book about his experiences (The Interrogators) under the pseudonym Chris Mackey stated explicitly that, under orders handed down from senior figures in the U.S. military and the intelligence agencies, who were sent the prisoner lists from Afghanistan, all "non-Afghan Taliban/foreign fighters" were to be sent to Guantánamo. As Mackey noted, "Strictly speaking, that meant every Arab we encountered was in for a long-term stay and an eventual trip to Cuba."

The same was true of the majority of the 220 or so Afghans who were also transferred to Guantánamo. Although Mackey made it clear that only Afghans with "considerable intelligence value" were supposed to be sent to Guantánamo, it was not until June 2002, when around 600 prisoners in total had already been transferred, that those in charge on the ground in Afghanistan came up with a category of temporary prisoner, who could be held for 14 days without being assigned a number that entered the system overseen by the Pentagon and the intelligence agencies. It was, he explained, the only way that they could deal with at least some of the many innocent Afghans who ended up in their custody. Even this, however, failed to stem the flow of wrongly detained Afghans who continued to be sent to Guantánamo until the industrial-scale rendition of prisoners ended in August 2003.

This whole process was in marked contrast to the Article 5 battlefield tribunals, enshrined in the Geneva Conventions, which had taken place in all other U.S. wars since the Second World War. Held close to the time and place of capture, these enabled the military to separate soldiers from civilians caught up in the chaos of war by allowing prisoners to present their case to a military review board, and to call witnesses. During the first Gulf War, for example, the military held 1,196 battlefield tribunals, and in nearly three-quarters of them the prisoners were found to be innocent and were subsequently released.

Guantánamo's Deliberately Flawed Tribunals

When tribunals were finally allowed, they occurred up to three years after the prisoners were seized, and took place at Guantánamo, half a world away from the place of capture. They were, moreover, introduced solely as a rebuke to the Supreme Court. In June 2004, alarmed that prisoners seized in wartime were being held without any possibility of review (even if they maintained, as many did, that they were innocent men seized by mistake), the Supreme Court delivered an unprecedented ruling, granting the prisoners habeas corpus rights – the right to challenge the basis of their detention before an impartial judge, based on an 800-year-old English law that was one of the foundation stones of U.S. law.

As a mockery of the battlefield tribunals (and of the Supreme Court's intentions), the combatant status review tribunals (CSRTs) at Guantánamo prevented the prisoners from having access to lawyers, gave them no opportunity to present evidence in their defense, and prevented them from either seeing or hearing the classified evidence against them.

In addition, although they were empowered to call witnesses from outside Guantánamo, the authorities responded to every single request by claiming that they had been unable to contact them, even when, as Carlotta Gall and I reported for the New York Times in February, the witness requested by one particular prisoner (Abdul Razzaq Hekmati, an Afghan who died in Guantánamo of cancer on Dec. 26, 2007) was Ismail Khan, a minister in Hamid Karzai's government.

Moreover, doubts about the quality of the information that was presented as evidence by the government were spectacularly confirmed in June 2007, when Lt. Col. Stephen Abraham, a veteran of U.S. intelligence who had worked on the tribunals, denounced them for being nothing more than a front to confirm the prisoners' prior designation as "enemy combatants." In detailed analyses of the tribunals' failings (available here and here), Abraham explained, unambiguously, how the body set up to administer the tribunals, OARDEC (the Office for the Administrative Review of the Detention of Enemy Combatants), was staffed for the most part by people with no expertise of analyzing intelligence, was not empowered to seek evidence from the intelligence agencies, and was obliged, for the most part, to rely on information "of a generalized nature – often outdated, often 'generic,' rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals' status," and on other information drawn from the interrogations of the prisoners themselves, in which their "confessions" about their own activities and those of other prisoners may have been – and frequently were – obtained through torture, coercion, or bribery.

A hallmark of the Bush administration has been its refusal to concede that it has ever made any mistakes in the "War on Terror," and this was also made clear during the CSRTs. Because of what one tribunal member called the "low evidentiary hurdle" for deciding that prisoners were "enemy combatants," only 38 of the 558 prisoners held at the time were cleared for release, even though it has subsequently become apparent that many more innocent men were actually held. What makes this situation even more disturbing, however, is the knowledge that the administration insisted on reconvening tribunals on several occasions when it was not satisfied with the initial result.

This happened to Lt. Col. Abraham after he was asked to take part in a tribunal, when he and his fellow officers refused to conclude that Abdul Hamid al-Ghizzawi, a Libyan shopkeeper with an Afghan wife and a small child, was an "enemy combatant." Abraham and his colleagues were dismissed, and a second, secret tribunal duly reversed their opinion. It also happened on other occasions, including the cases of two of Guantánamo's 22 Uighurs (Muslims from the Xinjiang province of China, who had fled to Afghanistan to escape persecution by the Chinese government).

Forever Tainted as "Enemy Combatants"

Moreover, as one of Lt. Col. Abraham's colleagues noted last summer, the refusal to concede that any of the prisoners were innocent meant that, "after several detainees were found to be 'not an enemy combatant,' DoD took away that option and we had to start using the term 'no longer an enemy combatant' for those held for no apparent reason."

By the time of the CSRT's successors, the annual administrative review boards (ARBs), whose stated aim was to determine whether the prisoners still constituted a threat to the United States, the authorities rapidly dispensed with the claim that prisoners were "no longer enemy combatants." Of the 207 prisoners approved to leave Guantánamo after the first three rounds of the ARBs, only 14 were regarded as "no longer enemy combatants," and the rest were still explicitly regarded as "enemy combatants," who were only approved for transfer from Guantánamo – to the custody of their home country, or to a third country.

In a second article, I will demonstrate the effects of this cynical semantic maneuvering on the 50 prisoners still held at Guantánamo who have been cleared for release or "approved for transfer," but cannot be repatriated because of international treaties preventing the return of foreign nationals to countries where they face the risk of torture. I will suggest how Barack Obama can break this deadlock, and will also examine the gulf between rhetoric and reality concerning the military commissions, proposals to transfer prisoners to the U.S. mainland, and what the new president should do with the prisoners considered "too dangerous to be released, but not guilty enough to prosecute."

Advice for Barack Obama