Transcript
Guantanamo Detainees: Legal Process?
|
TOOLBOX
   Resize
|
Monday, July 11, 2005; 1:00 PM
When Sen. Richard Durbin suggested that a FBI description of U.S. interrogation practices at Guantanamo Bay seemed more like those found in the Soviet gulag or Nazi Germany, he short-circuited an important debate before it began. Juliette Kayyem of Harvard University writes in a Sunday Outlook piece that Durbin's careless remark shouldn't distract us from a thorough examination of the Bush administration's policies. She says that the administration was correct, in the early days after 9/11, to worry about the appropriate legal designation for those individuals who wear no uniform, swear no allegiance to a particular government and who are believed to pose an imminent threat to Americans. But if the administration isn't going to apply the rules of the Geneva Conventions to these detainees, she says, then it must develop some sort of new legal framework to prevent abuses.
Juliette Kayyem , a former Justice Department lawyer and now a lecturer at Harvard University's Kennedy School of Government, was online Monday, July 11, at 1 p.m. ET to discuss her Sunday Outlook article, Tortured Arguments.
A transcript follows.
____________________
Bethesda, Md.: Given the recorded incidents of abuse and mistreatment at Guantanamo, what does the new "legal framework" you propose entail? Also, do you support the process of 'extraordinary rendition' and, if so, would that be a more effective way to handle suspected terrorists?
Juliette Kayyem: ON the second point, rendition: no. That seems to me to be the clear part of our law. For more on the exacts of the proposal, you can read it online (it is long and detailed) at http:/
_______________________
Fort Washington, Md.: What interrogation tactics do you consider to be torture? Sleep deprivation? Psychological ploys using the medical record of the detainee? Humiliation? Threat of returning the detainee to the hostile intelligence service of his country? You make the distinction between tough interrogation tactics and torture, but you fail to provide your own judgment about what constitutes torture and hence you avoid the nub of the issue. That is a "cop out".
Juliette Kayyem: That was not intended to be a cop out, as you put it. Me, personally: sleep deprivation (depends on length or if in combination), psychological ploys (no); threat of returning (likely no, and the law is unclear on that one). Those are mine; many will disagree. The point is that there has been no conversation about the "cop out", so that we are stuck in this "everything the President. says works works" and the critics of that attitude (who, when pressed, will say that only the long-term interrogation tactics of befriending, cajoling the detainee provide useful information). My proposal was that, I believe, everybody has been coping out; people on the left and right both disagree on that one.
_______________________
Tampa, Fla.: You mention only in passing the "negligible" intelligence obtained by coercive methods at Gitmo. This really understates the problem. The FBI said the same thing about Abu Ghraib, that we obtained "no actionable intelligence" using coercive methods. The entire defense of these tactics assumes they work, while the evidence says otherwise. So we're really just throwing gasoline on the fire. Using counter-productive methods in something as serious as fighting terrorism is incompetence and malfeasance of the highest order. If those running the interrogations don't know what they're doing and are only making things worse, fire them and replace them with people who know what they're doing, even if it means using different methods.
Juliette Kayyem: I am also all for competent interrogations; talk to Israel interrogators and they will describe our efforts as "juvenile" or "amateurish." So, I didn't want to suggest that the interrogation tactics on Guantanamo Bay are the right tactics to codify. The problem I tried to raise is that almost no tactics are codified; if there are such things as good/effective interrogation tactics, and that some may be more draconian than others, it might be worth trying to delineate which ones satisfy those qualifications. So, even if we were to replace bad interrogators (i.e untrained, unprofessional) with good ones. . . what should the good ones be allowed to do? What are those tactics, when, against whom, etc.
_______________________
Fort Washington, Md.: What specific guidance can you give to a person on the firing line who must determine if an individual he is questioning belongs to(1) the group of "Hard core" terrorists or (2) the mass of detainees? You are no doubt correct that the latter group is much larger than the former. But that is not the issue when an interrogator on the firing line has to make a decision about a specific individual suspect.
Juliette Kayyem: I'm not sure what you mean by "firing line." IF engaged in active combat, I would never require such fine distinctions (nor do the Geneva Conventions, the laws of war, etc.). But, if you mean that you have someone before you and you have no idea who they are, then the circumstances of their detention (captured armed, planning an attack, or walking around), what we know about him (previous intell, such as Khalid Sheikh Muhammad, etc.), and what he is likely to know based on those circumstances.
_______________________
Centreville, Va.: The lack of information in the press about the conditions in Gitmo really concerns me. Thank you for what you have done, and are doing, to make sure that the information gets out.
Recently we heard a great deal of coverage about Hurricane Dennis hitting Cuba and the damage done there and in Haiti. Why do we not hear about the effect of big storms in GITMO? How are the detainees protected from bad weather, and what are the conditions there now?
Juliette Kayyem: There are some reports that areas of Guantanamo Bay were hurt during the Hurricane, but there is no evidence to suggest (though I agree with you that we get too little info. about Guantanamo) that anything terribly bad due to weather affected the prisoners. We have had a base there for some period of time and we are well-equipped to address that issue. Thank you for your comments.
_______________________
Lyme, Conn.: How does our behavior serve as an example to how we hope other countries will detain their detainees? Do we have a responsibility to lead by example on how we hope others will behave? Shouldn't we be concerned that others may feel that they need not follow usual guidelines when detaining Americans?
Juliette Kayyem: I recognize your argument and it is one I tried to address at the end of the piece. You are right to be concerned that how we treat others, we will also be treated; that when we abrogate the rules, nothing stops others from doing the same. But, regarding this issue, I think we have overstated the impact of our detention and interrogation policies on the world. Sure, they have not done us any good. But, I believe that things have gotten so bad -- Iraq, terror threats, an unknowable al Qaeda -- not because we have violated some norms (but due to complicated, and in my opinion, bad policy decisions). So, in the end, I don't like what our lack of policies has turned us into (including our military).
_______________________
Fairfax, Va.: I enjoyed the article and agree that we need a policy, not the typical George Bush "Stay the course and muddle through". The treatment of prisoners is getting to be a real problem that has to be addressed. See the article in BBC today: Iraq suspects suffocate in heat.
Juliette Kayyem: Thank you for your response. I have gotten a variety of responses, criticisms from both the pro- "commander in chief" types and those concerned that we have strayed way too far from where we started on Sept. 10, 2001. It is a difficult issue, because it forces us to confront the details: do interrogations work, and, if yes, what tactics should we allow. Human Rights groups (and for full disclosure, I sit on the Board of one of them) will say that the only effective interrogation tactics are the slow/relationship building that produces results; they argue that any cruel, inhuman conduct not only violates the law, but also is counterproductive. But, I'm not sure anyone is willing to go on record about when we have reached that line: that something goes from being "good" to "cruel." Certainly, our interrogators don't know it.
_______________________
Bethesda, Md.: If Guantanamo were closed, an action that I would also oppose, would ensuring more transparency and accountability in the legal process (as well as enforcing standards of acceptable coercive interrogation) be much more difficult, as the prisoners would perhaps be transferred to the archipelago of "secret" prisons, such as those run by the CIA?
Juliette Kayyem: They might be, but I think that at some stage it was clearly known that the intelligence value of the detainees was becoming negligible. I think greater transparency and accountability would ensure fewer mistakes; more likely, however, it would require the government to actually come up with a plan for its detainees. The problem with Guantanamo Bay wasn't the place itself (I thought it appropriate to send detainees there to get them off the battlefield); it was that, without oversight, nothing was ever done to process them, determine who they were, etc.
_______________________
Bethesda, Md.: Would so-called "torture lite" only be justified if it produced 'actionable' intelligence from detainees?
Juliette Kayyem: I'm not sure what you mean by the question; "torture lite" is a way of describing any coercive interrogation technique, without getting into the details. Will some coercive interrogation techniques come up short; perhaps, but fewer than now certainly. Would a system of regulation, oversight, and accountability ensure that any use of coercive interrogations (and those who were our interrogators) were subject to scrutiny, leave us in a better place than we are now, I think so.
_______________________
Los Angeles, Calif.: Do you feel as though the rule that combatants have to wear the uniforms of specific countries a nod to the Military Industrial Complex? I certainly do.
Juliette Kayyem: No, it is a rule that reflected an understanding that more countries fought wars subject to the historical and traditional laws of war (which said uniform, targeting military only, etc.). That was where the uniform/non-uniform distinction came in, though it may be somewhat antiquated today ( a position with many critics). If that is the case, it would be a good idea to figure it out before engaging in more detentions and interrogations (let alone wars).
_______________________
Alexandria, Va.: I agree that you have identified the central question: "what are we, as a people/society/nation, prepared to accept as legitimate forms of coercion during interrogation?" And your treatment, in my opinion,correctly put your finger on flaws in both the Bush administration and its critics' arguments regarding the issue.
Yet, at the same time, it seems to me that you have not identified a deeper problem that creates the context for the debate on both sides of this issue: The polarization in the current political process is unlikely to abate as long as reductionism defines the framework for the policy discussion of this central question. Current political practice is dominated by the Lombardi approach to gamesmanship: "Winning isn't anything, it's the only thing." As long as the culture reduces politics to partisan zero-sum gaming, politics in a more classical sense doesn't stand a chance. I agree that the debate is too noisy. A new framework is needed and, for starters, shouldn't it include rededication to politics aimed at achieving an understanding of the nature of the policy question we face here?
Juliette Kayyem: I can't necessarily disagree with you; part of the reason why we haven't done anything is the extreme gamesmanship (the President. is always right; the President. is never right, etc.) Maybe that is too difficult to cure, so I couldn't address. But, there has been tremendous movement on both sides of the aisle, and though the specifics will differ, it is worth figuring out where the good ideas are on this stuff. Though, likely, Bush would veto, unless pressed by the American public.
_______________________
Washington, D.C.: I have a pretty basic question. Why don't we stop using the administration's euphemism and call them prisoners, which is what they are?
Juliette Kayyem: I assume you mean that "detainees" is the euphemism, and you are right. ON the other hand, many are simply that. . . detained for short (or long) periods of time, subject to no criminal complaint, no access to evidence (if any) against them. The detainee phrase has been so utilized in public it is difficult not to incorporate it, like "war on terror," etc.
_______________________
Alexandria, Va.: How is really possible to draw a bright line between what is acceptable and what is not? Aren't there always going to be exceptions through which interrogators will drive a truck?
Juliette Kayyem: Your question is the fundamental question: critics of my approach will say just that, so therefore lets ban any coercive interrogation techniques (they also believe that there is no evidence that they work). But, that is true of any rule or regulatory state; that is why our proposal also discusses oversight, disclosure, etc. not so that bad things will never happen, but only as an attempt to minimize that occurrence. See http:/
_______________________
New York, N.Y.: It sounds like you are suggesting that for those who are deemed not to fit within the Geneva Conventions, your proposal permitting interrogators to employ tactics that would fall short of torture, would allow for many prohibited practices such as "cruel, inhuman or degrading treatment". Such practices are prohibited by international law, the code of military justice, and both Israeli and European courts have deemed such conduct unacceptable in confronting terrorism. How can you justify this deviation from law?
Juliette Kayyem: The problem is not the "law"; it is clear what it says (though there are certainly many who would disagree that the law is so clear in these circumstances). The question is what tactics, what specific procedures, fall into this camp. What in fact falls into cruel, degrading, etc.: interrogators will disagree, and the courts will always determine this (i.e. "shock the conscience" test) based on the circumstances surrounding the situation. So, I'm not so confident that the law provides the detailed answers we might require.
_______________________
Canton, Miss.: Assuming an addendum to the Geneva Convention to cover terrorists not aligned with a recognized government, what will be necessary to assure the new rules are generalized, accepted by the international community, and cannot set precedent that will encourage torture of American troops that are captured during undeclared wars?
Juliette Kayyem: I cannot guarantee that such conventions or new rules would be acceptable to the international community, nor do the rules themselves always prohibit bad conduct by other. But, and this is where many will disagree with me in the human rights community, the rules seem better, at this stage, than no rules or even an insistence that severe interrogation tactics do not work (which I think it depends on what the tactics are). But, for the details on our proposal: http:/
_______________________
Ontario, Canada: This is indeed a poor time to be talking about prisoners "rights", with the city of London still in shock after the recent attack. I think you could better spend your energy on thinking up ways to get more information out of these thugs, not dancing on the head of a needle to discover how much better you can coddle them. Do you people ever wake up? Look about you, support your government, and stop this insane nonsense that passes for journalism. It is insulting and degrading to those who see these punks for what they truly are: Killers.
Juliette Kayyem: The attacks this week suggest to me, as they should suggest to everyone, that the effort against terrorism is alive and well, and that this is a long-term effort to combat them. IF that is the case, it doesn't strike me as particularly helpful to simply say "support the President." It seems that undermines our effectiveness in a democracy and does not provide the guidance we require. I take the threat as seriously as anyone.
_______________________
Bethesda, Md.: In the "ticking bomb" scenario, is it justifiable to torture a suspected terrorist who may have direct knowledge on the hypothetical imminent attack?
Juliette Kayyem: Yours if the quintessential "24" question, and perhaps Keifer Sutherland can live with ambiguity, but I don't think it serves us well. Our analysis of the "framework" we need actually has a strict procedures for any interrogation techniques, and none would be torture. I believe, however, that those are just words, and that the specific techniques we should or should not allow must be discussed. Please see http:/
_______________________
Albany, N.Y.: A couple of thoughts:
1. It is my understanding that the administration has maintained that American law does not apply at Guantanamo. However, American law applies at American embassies and consulates overseas and to its personnel; if it did not there would be no law of any kind that applied to American diplomatic personnel overseas due to sovereign immunity. American diplomatic personnel overseas have been tried in American courts for crimes committed on foreign soil. Given this fact, how can the administration make the claim that American law does not apply to Guantanamo?
2. It is my understanding that the status of a captured person, when in doubt, must be determined by a competent tribunal. I'm not sure Bush is a competent anything, much less a competent tribunal.
Juliette Kayyem: On your questions:
1. the government. did argue something along those lines, but was resoundingly rejected by the Supreme Court last year. The problem is that the Court never said what "process" should be allowed the detainees, even if some process should be allowed. SO, that is why there is still no resolution
2. Yes, when in doubt, that is exactly what should have happened at Gitmo. So, let's assume that there is such a tribunal, and that it determines someone is unlawful. . . now the hard question (for us): what can we do to him, what does it mean if the only legal standard we have to go by is that we don't torture or treat people inhumanely. Those are the specifics that we ought to be worried about.
_______________________
Alexandria, Va.: Thank you for your thoughtful discussion. I will certainly read your detailed proposal; but what do you make of John McCain's stand? I certainly agree with you that a procedural, oversight and accountability approach is probably the only way we can proceed.
Juliette Kayyem: McCain recently suggested in a NYTimes Magazine story that he would feel uncomfortable with such regulations, though the story did not make it clear whether that meant "torture" (which is always prohibited) or other interrogation techniques. AP stories suggested last week that he was considering interrogation/detention standards, a big stand since Republicans have not often strayed from the President in this regard. So, I'm not sure where he is heading right now.
_______________________
Chicago, Ill.: Why shouldn't captured Taliban fighters qualify as prisoners of war? They most assuredly fit the definition of being members of the armed forces of a state, and that's all that matters. All that language about wearing uniforms and having commanders, etc., that the administration always cites comes from a separate section of Article 4. Does it follow from how this administration has interpreted the Geneva Conventions that if, for example, American soldiers in Afghanistan are wearing local outfits, that they can be shot on sight?
Juliette Kayyem: Taliban fighters should be considered prisoners of war; the Administration's viewpoint was that ANYONE captured in Afghanistan would not qualify. Even if one made the assumption that it was questionable, a status hearing would be required. But, let's assume that someone is determined not to be a member of the armed forces of a state. Then what? Well, the GC's tell us that we can't act cruelly, but my concern is that we don't know what that means. It may be that any such interrogation tactics don't work, or are counter-productive (a claim by the left). But, even that argument doesn't draw a line on what techniques would be appropriate: sleep deprivation, etc.
_______________________
New Paltz, N.Y.: What is an 'enemy combatant' and why has the government refused to offer a clear definition? Also, do you think military action is the right course of action for fighting terrorism, or should it stay a criminal matter as it was treated pre 9/11? (bin Laden indicted in criminal court in 2000).
Juliette Kayyem: The Government has offered a variety of definitions, but one (giving them benefit of doubt) has to assume that it means someone not covered by the prohibitions v/v interrogations in the Geneva Conventions. That doesn't get us very far, as I suggest in the article. I do believe that military action, with intell, law enforcement and diplomacy are all part of fighting terrorism. But, not every war (i.e. Iraq was, at best, counterproductive to combat terrorists). But, might military action be an option again: possibly. The problem with the "war on terror" is that it makes it seem, to the public, that "war" (i.e. military action), is the best paradigm to combat terrorism.
_______________________
Juliette Kayyem: Thank you for your many comments. For more details on the proposal discussed in the article, please see http:/
_______________________
Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
