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
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
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
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
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
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."