By Matthew Waxman
Sunday, October 28, 2007
In July 2005, I joined a group of senior policymakers at the White House for a review of administration policies on the U.S. military prison at Guantanamo Bay, Cuba. As we shuffled into the national security adviser's West Wing office, televisions nearby flashed with the ghastly news of a massive London subway attack that had the hallmarks -- coordination, skill and murderous imagination -- of an al-Qaeda strike. As the news sank in, one senior White House official spoke up. "It seems to me," he declared, to my astonishment, "this meeting is now irrelevant."
Yes, the ongoing threat of terrorism is very real, but it does not follow that we must keep Guantanamo Bay open -- or even that the prison helps our fight against al-Qaeda. It did not occur to that official that the previous four years' worth of experience might offer lessons that would help us revise the U.S. approach to detaining suspected foreign terrorists. But they do.
President Bush has said publicly that he would like to see Guantanamo Bay closed, if he could do so without putting Americans in greater danger. He can, and he should. My experience advising former defense secretary Donald H. Rumsfeld and Secretary of State Condoleezza Rice on these issues has convinced me that there's a way out, but it will take some painful truth-telling to get there. For even if Guantanamo Bay could be defended in legal or moral terms, it still hurts us more than it helps us in battling al-Qaeda.
I'm not trying to challenge the improvised decision to create Guantanamo Bay's detention site in 2002. Rather, I want to challenge its continued operation in 2007. Fair-minded people can differ over whether the Bush administration was justified in sending suspected al-Qaeda fighters there immediately after Sept. 11, 2001, but as time wears on, it's almost impossible to argue that the prison is keeping us safer.
To solve our Gitmo problem, we need to understand it better. Unfortunately, amid all the rhetorical heat, Guantanamo Bay's defenders and detractors have gotten carried away. For example, the soothing notion among some critics that everyone at the prison is an innocent bystander erroneously swept up in post-9/11 dragnets is a fantasy. But so is the Bush administration's dogged insistence that all the detainees there are the "worst of the worst." Some of them should never have been there (including several supposed jihadists turned over for bounty based on assertions that later proved flimsy), and such imprisonments have had tragic and dangerous consequences.
Likewise, the administration's critics are wrong to assert that we no longer gain valuable intelligence at Guantanamo Bay. But we should not exaggerate the value of the current information-gathering there either, which often comes from detainees who haven't been involved in terrorist plotting for years now. And while the improved general conditions I repeatedly saw are humane by the standards of U.S. and European prisons, Guantanamo Bay's defenders hurt their own credibility when they refuse to acknowledge the well-documented abuse that has occurred there.
Yes, Guantanamo Bay has incapacitated many al-Qaeda plotters and has given the U.S. government a better picture of the enemy. But those benefits came at a serious cost. On balance, the prison -- and the widespread perception that it exists simply to keep detainees forever beyond the reach of the law -- has become a drag on America's moral credibility and, more to the point, its global counterterrorism efforts, too.
For example, the continued controversy over Guantanamo Bay has hampered cooperation with our friends on such critical counterterrorism tasks as information sharing, joint military operations and law enforcement. I know: As a State Department official, I often spent valuable time and diplomatic capital fruitlessly defending our detention practices rather than fostering counterterrorism teamwork. Guantanamo Bay leaves us playing defense and hinders our ability to play effective offense.
What to do? It's easy to demand that the prison be closed, but it's hard to figure out what to do with the most dangerous detainees there, such as Khalid Sheik Mohammed, the mastermind of the 9/11 plot. And even if we agree that we shouldn't use Guantanamo Bay as a long-term detention site, we still need to work out what sort of system could hold large numbers of terrorist operatives rolled up in ongoing or future campaigns against al-Qaeda.
Simply returning all the detainees to their home countries (such as Yemen, Syria, Egypt and Pakistan) is no answer. Some of these nations won't take them; some would probably mistreat them; others might even release dangerous militants.
Prosecuting the Gitmo detainees for crimes in U.S. courts isn't a panacea either. Criminal prosecutions should be carried out whenever possible, but the evidence against a particular suspect often can't be presented in open civilian court without compromising intelligence sources and methods. Or the evidence may not be admissible under U.S. criminal law rules.
So the best way to close Guantanamo Bay lies somewhere in between: transferring many of the detainees to their home countries, sending some to third countries and bringing the remainder -- including those who would be prosecuted for war crimes -- to secure facilities in the United States. They would be held in military facilities, like those that already kept suspected American terrorists such as Jose Padilla, or in ultra-secure federal prisons such as the one that holds Ramzi Yousef, the architect of the 1993 World Trade Center bombing.
The White House needs to take the lead, but don't look only at it. Unless Congress and our allies step up, closing Guantanamo Bay this way can't happen. To be sure, the administration has done far too little to work with Capitol Hill. But Congress should ensure safe and effective detention -- both by narrowly defining a category of terrorism suspects whom the executive branch can legally detain, and by mandating sensible oversight and review of those detentions by the courts.
Our allies, too, need to do more: They must seriously lessen the threat that some former detainees will pose, not just call from the sidelines for shuttering Guantanamo Bay. Washington should make it clear that the pace of the prison's closure depends directly on our partners' willingness and ability to take custody of some of the detainees and to help pressure other countries to follow suit -- all with protections against further abuse of the type that has so weakened America's standing.
Still, Guantanamo Bay is only the immediate manifestation of a much larger problem. For the foreseeable future, the United States and its partners will continue to capture suspected operatives of al-Qaeda and other terrorist groups. We need a durable, long-term framework for handling detainees -- one that lets us hold the most dangerous individuals and collect intelligence from them (including through lawful interrogation), but also (unlike Guantanamo Bay) has rules and procedures that are politically, legally and diplomatically sustainable. Neither U.S. criminal law nor the international laws of war were built to deal with networks of terrorists stretching across continents and bent on appalling carnage. So the United States, along with its closest democratic allies, ought to craft rules that are.
To get there, we should move beyond the debate between those who say that only traditional habeas corpus rights to a fair hearing can sort out these cases and those who say that noncitizen enemy fighters captured abroad in wartime have never been entitled to their day in court. We'd all be better off forging a broad agreement about the minimum acceptable conditions for any long-term detention process, firmly within the rule of law. These should include periodic reviews by an independent judge of the factual bases for a detention, under clearly legislated standards, and meaningful chances to challenge those premises with the assistance of lawyers. It's almost impossible to perform judicial review in combat zones, so we may have to make careful exemptions there. But any system without these features will lack legitimacy at home and abroad.
Both of these proposals -- shutting Guantanamo Bay and establishing robust judicial review of detentions -- carry risks. But those risks should kick-start the discussion, not end it. Detention policy is not about eliminating dangers, but about balancing and managing competing dangers. And keeping Gitmo open -- sapping U.S. prestige, alienating our allies and handing al-Qaeda a propaganda tool -- carries downsides, too.
Civil libertarians and security-minded hawks will both no doubt criticize these suggestions. But it's past time to close Guantanamo Bay. Rumsfeld, my former boss, famously described the prison in 2002 as the "least bad option." Whatever the validity of his assessment then, my plan for shutting Gitmo is less bad now.
Matthew Waxman teaches at Columbia Law School. He has served as acting director of the State Department's policy planning staff and, in 2004-05, as deputy assistant secretary of defense for detainee affairs.