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Outlook: When Gitmo Was (Relatively) Good

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Karen J. Greenberg
Outlook Contributor and Law and Security Expert
Monday, January 26, 2009; 2:00 PM

"In his first week in office, President Obama signed an executive order that would shut down the notorious U.S. military prison at Guantanamo Bay, Cuba, within a year. But as the United States moves to end this shameful episode, it's worth reflecting on the untold story of the very beginnings of Guantanamo... Those early days --back before Gitmo became Gitmo -- strongly suggest that the damage the prison inflicted on America's honor and security could have been avoided if policymakers had been willing to follow the uniformed military's basic instincts. It may be too late for these revelations to help redeem Guantanamo in its waning days. But U.S. detention policy in the years ahead could still benefit from learning about these small, initial efforts at decency."

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Karen J. Greenberg, executive director of New York University's Center on Law and Security and the author of the forthcoming book The Least Worst Place: Guantanamo's First 100 Days was online Monday, January 26 to discuss her Outlook article on the 2002 founding of the Guantanamo Bay detention center and President Obama's decision to close it.

A transcript follows.

Archive: Transcripts of discussions with Outlook article authors

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Karen J. Greenberg: Hi. It's Karen. I am looking forward to your questions.

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Los Angeles, Calif.: Other than Bush Administration statements, have you or your colleagues seen concrete evidence or intelligence demonstrating that torture (enhanced interrogation), renditions or information gleaned from Gitmo prisoners saved American lives since 9-11? If yes, what are the specifics (who reported it and when what plot was revealed, how many American lives saved, etc.)? After 7+ years, compromising interrogation techniques or sensitive intelligence sources should not be a legitimate issue. If no, why do you think there are no specifics? Are these claims merely self-serving, false, fear mongering and/or lame excuses to justify Bush/Cheney use of torture?

Karen J. Greenberg: I am unaware of assertions about the use of torture to save American lives -- other than those that have come from the Bush Administration's statements. Having said that, I would add that even if torture can work, that doesn't make it a useful tool. On the contrary, as torture can also produce incorrect and misleading information, it is a tool that can harm as in the case of al-Libbi and the assertions about WMDs in Iraq.

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Washington, D.C.: What do you think are the most reliable numbers on recidivism by Guantanamo detainees? How serious were the things they did following their release? You spoke to a number of detainees -- were they accidentally imprisoned? How often did that happen?

Karen J. Greenberg: On recidivism, the Pentagon has said that 18 of the detainees are believed to have returned to terrorism. Another 43 are suspected but the Pentagon does not claim that they are engaged in terrorism. There are three cases of Gitmo detainees returning to the fight at high levels, according to reports. But the recidivism rate is relatively low, as 557 have been released overall. It's important to emphasize that good judgment is needed in terms of deciding who leaves just as it should have been more important in deciding who to send to Gitmo in the first place.

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Washington, DC: Isn't there an aspect of the Geneva Convention and the Army Field Manual that does allow "harsh interrogation" in cases of imminent and great danger, or something like that? If not, is there a recognized instance where torture is justified? I recognize why such a policy is untenable in the long term, but in certain instances it must be justified and legally enabled, right?

Karen J. Greenberg: There is no imminent danger exception to my knowledge in the Army Field Manual either for harsh interrogation or for the use of torture. The Field Manual outlines specific methods of interrogation, and the Geneva Conventions set minimum standards of treatment. As for the justification for torture, there is no recognized legal instance.

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Barrington, Illinois: Ms. Greenberg,

Your essay included nothing about what you advise our government to do with the terrorists when they are released from Guantanamo. How do you think we can maintain security if terrorists are released by the courts within the borders of our country?

Karen J. Greenberg: I think it's unlikely that they will release the Gitmo detainees within the borders of the US. However, think about countries like Britain, where Gitmo detainees have been set free, so there are other countries that deal with this question every day. I would suspect that anyone released abroad or at home would be under careful watch by law enforcement authorities.

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Houston, Tex.: Good afternoon Ms. Greenberg, Can the UN official on torture, Manfred Nowak, instigate an investigation of torture against the Bush administration?

Karen J. Greenberg: My thinking is that it is more likely that such a charge would come from an individual country, e.g. in Europe. Universal jurisdiction specifics vary from country to country where overall a charge would be brought on behalf of a victim or victims.

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Charleston, S.C. : Hi Karen,

Could you please explain how evidentiary rules differ for the military tribunals, the established military court system, and the federal judicial system. Do you foresee any possible court that could convict these individuals given the tainted evidence? Thanks for taking the question.

Karen J. Greenberg: The question on evidentiary rules is a complicated one, but essentially, there has be some evidence obtained not coercively to present in court. Of late, numerous reports have come to light about the lack of information on the individual detainees and about the disorganized state of what information we do have. So, under any system, the evidence may prove difficult to interpret. However, there may be, e.g. in the case of Khalid Sheik Mohammed, evidence that was gained prior to any torture or abuse. As for the conviction on tainted evidence, not all of the evidence is necessarily tainted. So some of these cases will likely be able to stand.

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Civilian leadership deserves all the blame?: I just this moment read your very interesting article. May I comment that although I agree the US military contains many honorable members, who serve their country, following the spirit of America's founding principles of the respect for the rule of law, including others Alberto Mora, the senior Navy investigator, and Mark Buzby, the 2008 commandant, who spoke with every captive, the record shows the shame of Guantanamo can't be solely attributed to Civilian leaders in Washington? Didn't they find some willing allies within the US officer corps?

I'd like to comment that the policy of abuse didn't just taint America's honor. I think it also made the public much less safe, through the irreplaceable waste of counter-terrorism resources on wild-goose chases triggered by false confessions and false denunciations wrung from captives through abusive interrogation.

Karen J. Greenberg: Yes, this is a good point. My point is that good leadership, a la General Lehnert in this case, created an environment where troops prone to acting out were removed or chastised. With other leaders, this was not apparently the case.

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Chicago, Ill: Thank you for your article. You say, "Once Lehnert's troops departed, a new Guantanamo took shape -- the Guantanamo that an appalled world has come to know over the past seven years."

I don't understand why you don't give the list of commanders that were in charge of Guantanamo after Lehnert. Is this because of legal fears, or because you believe that the people responsible are entitled to privacy? Surely those responsible are part of the public record? I am also curious as to whether in those early days, Lehnert had any inkling that some (or many) of the inmates were there for no good reason.

Karen J. Greenberg: Well, the new leaders' names are of course in the book and in the public record. I think there have been a total of six commanders since then.On the point about inmates being there for no good reason, Lehnert, I think, thought at the outset that these were in fact "the worst of the worst," but within a short period of time, it was increasingly clear to Lehnert and his team that many of these men just didn't seem to be the hardened terrorists they had expected to receive and detain.

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Atlanta: Ms Greenberg:

Why is it immoral to detain terrorism suspects without trial, yet it is not immoral to kill terrorism suspects with missile strikes without trial?

Thank you

Karen J. Greenberg: good question for which I have no answer. However, one might say that the laws of war, when you are at war, apply -- if terrorism is considered an act of war.

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Dallas, Texas: You mention the disparity between the civilian policy makers' plans and the military's initial approach to the mission. Obviously Rumsfeld created a Frankenstein Pentagon, suppressing both the uniformed military and the Dept. of State... How hard will it be for the Obama administration to deconstruct and repair the damages, and what are the important steps in the process?

Karen J. Greenberg: Great question worthy of much more thought than a brief reply. But, for starters, the Obama administration has already returned (in last week's executive orders) some of the power usurped by the Pentagon (by presidential decree) back to the Department of Justice. I expect that other realignments, e.g. to the Department of State, will occur. Also, the military/civilian relationship needs to be examined and modernized for the 21st century.

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Kiawah Island, S.C.: How many detainees were actively involved in the plotting or execution of terrorist plots against the U.S.? My guess is that the overwhelming majority of the detainees are more in the wrong-place-wrong-time category or involved somehow on the fringes. Any idea of the percentages of truly hard core versus the "wrong-place-wrong-time" detainee?

Karen J. Greenberg: In late 2006, President Bush moved 14 high value detainees to Gitmo, among them Khalid Sheik Mohammed and Ramsi bin al Shibh. But these were later day additions. As for the 800 detainees that have been at Gitmo overall, 5%, statistics show, were picked up directly by US forces -- the rest were largely traded for bounty or arrested by other countries and turned over to the US. In addition, many of the Tora Bora fighters whom we would have liked to capture got away. So, the result has been that we picked up individuals who were not necessarily hardened terrorists. There are, by many reliable accounts, several dozen dangerous terrorists currently in Gitmo.

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Regarding recidivism...: Isn't the usual meaning of recidivism when someone convicted of a crime is convicted of a second crime, after their release? Only three Guantanamo captives were convicted in Guantanamo. None of them has been charged with a crime since then, so, using one sensible definition of recidivism, Guantanamo's recidivism rate is 0.0 percent.

Bush administration spokesmen have great difficulty acknowledging that many of the captives were innocent victims of mistaken identity. So they speak of former captives "returning" to the fight. But any captive who arrived at Guantanamo as an innocent victim of mistaken identity, and was radicalized at the camp, can't meaningfully be called a recidivist, can they?

I wonder how many of those 18 had no record of combatant or terrorist activity prior to their stay in US custody? Do you know whether the DoD or DoJ could substantiate the claim these 18 men "returned" to the fight, rather than engaging in the fight for the first time?

Karen J. Greenberg: good point of recidivism. 0.0 is correct.

I haven't seen any substantiation of these claims.

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Chicago, Ill.: Please name one conflict in human history where the active combatants were released to rejoin the fight, before the hostilities had ceased? Please enlighten us on how releasing these combatants makes us safer? As a former Marine, what incentive do I have to take any more prisoners, now that I know they'll receive more legal rights than I would. Obama doesn't appear to have thought this through... beyond appeasing the left and the rest of the world.

Karen J. Greenberg: Let me take a try at this, knowing that you probably won't agree. But, there is something to be said for admitting to mistakes. And a large number of these detainees were picked up, even by Pentagon statistics, erroneously -- and most outside of the theatre of battle. It is not about appeasement, and if they had been classified as POWs, as they should legally have been, we could keep them for the duration of the war. This legal/military predicament is what the Bush administration failed to foresee. As for appeasing the countries from which the detainees come, the anger at their incarceration without process could be lessened by their return or even by their conviction. Anyway, a safer world comes from a community that agrees to certain codes of law -- even strict laws. Leading with lawlessness seems unlikely to make us safer.

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New York: Following up on your response to Washington, D.C. regarding recidivism, MSNBC (Keith Olbermann, I believe) recently alleged that even the number of former detainees the Pentagon asserts have returned to terrorism is cooked. He gave various examples of subsequent legal action, travel, etc. unrelated to terrorism which were apparently the bases for the Pentagon's characterizations. (I am sorry that I don't have a transcript to quote more accurately.) What is your take on this?

Karen J. Greenberg: One of the unfortunate outcomes of the Bush era is the distrust in fact as fact. And yes, there have been innumerable instances, in the case of terrorism threats and the realities of who is at Guantanamo, where there have been assertions without facts to back them up -- only statements like "we can't tell you due to national security concerns." One of the great challenges for the Obama adminsitration is to reclaim a sense of accuracy rather than spin or even lies. We can't have constructive national discussions when debating sides have differing sets of facts.

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Anonymous: If President Obama was to return the USA to full compliance with the Geneva Conventions, would anyone who turned out to have been sent to Guantanamo on a false denunciation, or as the victim of mistaken identity, have to be released -- even if it seemed clear that they had been radicalized while in US custody, through Koran desecration, extreme interrogation methods, and years of detention without charge?

I have read transcripts from the captives' annual reviews where it seemed the officers fully accepted that captive's alibi, accepted that they had been sent to Guantanamo in error, but then told the captive their release would depend on them convincing the officers their captivity hadn't radicalized so they NOW posed a threat to the USA. Obama would have to reverse this to comply with the Geneva Conventions, wouldn't he?

Karen J. Greenberg: great questions. This all depends on the legal framework that Obama's lawyers determine is applicable to these detainees and to others going forward. The judgment call on who poses a threat and what legal remedies apply will be the most difficult for these lawyers, far more difficult than the evidentiary rules for those suspected of committing crimes against the US. However it plays out, the Geneva Conventions have certain requirements on process and treatment, but do not necessarily limit the length of detention provided there is sufficient process and humane treatment. It's unlikely the US will not comply going forward with the Geneva Conventions -- at least that's my best guess.

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Re: Atlanta: I think the proper distinction is between an enemy target in the field and a prisoner of war under your control. The target in the field is subject to being attacked; the prisoner is under your complete control. Also, I'd like to point out that our system, and most of the world's legal systems are based on "Innocent until proven Guilty", so please don't think that the people in Gitmo are "Terrorists" until proven that they are.

Karen J. Greenberg: Agreed.

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RE: Your Response to Los Angeles, Calif.: Even though waterboarding is torture, your response does not address so-called enhanced interrogation techniques or renditions. On Jim Lehrer's 1-14-09 program, there was a reference to Susan Crawford's determination that torture was used at Gitmo. Cheney said waterboarding is not torture and that "the lives that were saved and the threats that were defeated as probably our greatest achievement." There have been assertions that information gleaned from Khalid Sheikh Mohammed through enhanced interrogations "saved American lives." Have you or your colleagues seen any evidence of American lives saved?

Karen J. Greenberg: Again, this is a matter of who do you believe. In instances like KSM's waterboarding and other instances, other authorities have said that the information already existed. Some allege that torture was used because authorities didn't do their homework to see what other countries and other agencies already knew. But to answer your question directly, I have no knowledge of torture saving American lives.

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Anonymous: What does this say about American Democracy and our place in world affairs if our ship of state can veer so wildly in course in the space of only eight years ?

Karen J. Greenberg: Well, if we actually follow the spirit and the letter of these first Obama executive orders, the ship can turn around quickly. The devil will be in the details, but you're right, this is a real test for the nation.

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Karen J. Greenberg: Although this has been an unsavory period, as our last questioner wrote, the story of Lehnert and the 160 tells us that even when things are set off course, our democracy created a group of professionals who were trained to think that keeping American safe and abiding by the law were one and the same. With this spirit in mind -- if left to its own to thrive -- the revival of professionalism -- both military and legal will be only a matter of time.

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Karen J. Greenberg: Thanks for your questions. This was fun. Karen

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Editor's Note: washingtonpost.com moderators retain editorial control over Discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions. washingtonpost.com is not responsible for any content posted by third parties.


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