February 23, 2015
This is certainly a relevant question in the wake of the Senate Foreign Intelligence Committee’s recent release of its report on the CIA’s “enhanced interrogation techniques” (EITs).. Since the most onerous interrogation practices were terminated during the latter stages of the George W. Bush Administration and banned completely by the Obama Administration, we might assume that the question posed has already been answered. However, CIA Director Brennan in a recent news conference gave a vague response as to whether such techniques might ever be employed in the future. My comment on the question is that it is not “either-or.” I believe we can protect our values and ourselves in interrogating suspected or proven terrorists. Our law enforcement agencies have developed practices in interrogation that have had some success without such brutal techniques as water boarding, forced rectal hydration or chaining naked prisoners to the walls of their cells. The US Army Field Manual incorporates the same approach as the FBI and this, according to Brennan, has become the standard for CIA practices as well.
The use of torture is clearly contrary to American values embedded in our founding documents and in our democratic system. The case against torture is also a treaty obligation linked to our signature and ratification of the 1984 UN Convention against Torture. Treaty obligations are considered to be binding in terms of both domestic and international law and behavior.
Reportedly, the legal basis for the use of “enhanced interrogation techniques” was given in a late-2001 Justice Department memorandum employing the so-called “necessity defense.” The essence of this rather imprecise doctrine is that in some cases a technical breach of the law can be overcome by the advantage to society of the result of the breach. In the case of enhanced interrogation, this would mean that torturing prisoners could produce information that would protect American citizens by preventing acts of terrorism against them or by leading to the capture of people or groups planning such acts. The problem with this is that there is no clear evidence that torture has resulted in actionable intelligence that has led to prevention of a terrorist act or capture of a terrorist. In fact, during his news conference, Director Brennan stated, that the link between useful information and specific anti-terrorist actions undertaken by the United States, such as the killing of Osama bin Laden, was “unknowable.” (If it were unquestionably otherwise, I might have a different view of the “necessity defense” to justify the use of certain EITs.)
How does Guantanamo Bay fit into this issue? First let’s differentiate between Guantanamo Bay US Naval Base and Guantanamo Bay Detention Camp. The US has occupied the Naval Base (called “Gitmo”) in accordance with a US-Cuba treaty of the early twentieth century. The base itself can only be closed by mutual consent. In itself, it has no particular connection to anti-terrorist policy. The Detention Camp, located on the 45-square mile base, however, does. Since 2001 it has housed over 700 inmates, most of them captured during anti-terrorist operations in Afghanistan and other countries. Over 500 of these detainees, most of them formally uncharged, have been released or transferred to other countries. The Bush Administration considered the inmates to be “illegal combatants” and since the base was not on US territory, they could be denied certain American legal protections. The Administration also determined that the inmates should be tried by military tribunals. These positions have been amended somewhat by Supreme Court decisions, but the fact is that the remaining 150 prisoners, approximately 50 of which are considered to be hard-core terrorists (for example, the admitted mastermind of 9⁄11, Khalid Sheikh Mohammed) are being detained without trial. Some of them were subjected to “enhanced interrogation” before the practice was banned.
Candidate Obama promised to close the Guantanamo camp, but acknowledged that it would be difficult to honor our commitment to the rule of law without “releasing people intent on blowing us up.” An Executive Order he signed early in his administration was overridden by Congressional action. Congress denied funds for the transfer of prisoners or the building of facilities to hold them on US territory and made it clear that it would stand in the way of any attempt to close the Guantanamo camp. No further clarification of the future legal status of the detainees has been offered by the US Government. Until a political consensus can be reached as to what to do with the remaining detainees, there is no prospect – nor no particular argument – for closing down the camp. It’s too early to say whether resumption of full diplomatic relations with Cuba will change this equation.
Ambassador (ret) Melvyn Levitsky is Professor of International Policy and Practice at U of M’s Gerald Ford School of Public Policy. He teaches courses in international relations. During his 35 year career as a US Foreign Service Officer he served as Ambassador to Bulgaria and Brazil, a Executive Secretary of the State Department and as an Assistant Secretary of State.
President Obama’s first major speech on national security stated that, “instead of serving as a tool to counter terrorism, Guantánamo became a symbol that helped al Qaeda recruit terrorists to its cause. Indeed, … Guantánamo likely created more terrorists around the world than it ever detained.” John McCain and President Bush agreed throughout the 2008 campaign. Bipartisan consensus ran throughout government; the Senate Armed Services Committee, in a unanimous report on the treatment of detainees in U.S. custody, quoted Navy General Counsel Alberto Mora: “the first and second identifiable causes of U.S. combat deaths in Iraq - as judged by their effectiveness in recruiting insurgent fighters into combat - are, respectively the symbols of Abu Ghraib and Guantánamo.”
Today, as ISIS dresses its victims in Guantánamo-orange jumpsuits, these concerns remain as serious as they were six years ago. Yet bipartisan support for the closure of Guantánamo has eroded; even former POW McCain supports an amendment to effectively block any releases from a prison where all but ten men remain detained without any charges against them. What happened?
From the first month of Obama’s presidency, the Defense Information Agency has issued leaks to the press claiming absurdly high numbers of released detainees have engaged in “recidivism” – a “return” to terrorism or just “anti-American activity” after release. (Ironic quotation marks are necessary since just a tiny handful of the released were ever charged with offenses in the first place.) These claims almost entirely fail to name names or specify allegations (perhaps because the first few men named were accused of complaining to the New York Times about their abuse in Gtmo). Given where most men were sent back to – quasi-failed states like Afghanistan, police states like Saudi Arabia – the claims would be unverifiable even if the military did name names, since in many ways those countries are as much of a black box as Gtmo itself was in its initial days. And given the aggressive recruitment of intelligence cooperators from the ranks of prisoners, it makes sense that the Defense Department would claim high numbers of releases had returned to terrorism, as that narrative provides cover for former detainees attempting to work their way into insurgent organizations on behalf of our government. We at CCR have been unable to identify even a half-dozen actual “recidivism” cases.
Nonetheless, this overblown fear has created logistical roadblocks to releasing even men cleared by the task force Obama created in 2009 to review each prisoner’s case. To be cleared required the unanimous consent of the CIA, FBI, the military, and Justice and State Departments. But even men who have crossed that high a threshold will not be released without assurances from the receiving country that they will be subject to constant monitoring and international travel bans. That has slowed the pace of transfers for the cleared men , 87% of whom are Yemenis now destined for resettlement in third countries, but the task is manageable.
Of course, to actually finish the job will require dealing with two groups of men not cleared by the Task Force. The first is the small group of men (under three dozen) the task force designated for prosecution. Congress has forced all these cases into the military commissions system. Even after two radical overhauls of that system in 2006 and 2009, today only seven defendants have active cases, mired in the perpetual delay endemic to complex novel organizations. At this point, anyone who believes this dysfunctional system deserves to try the 9⁄11 case or any other is not genuinely interested in seeing justice ever delivered.
The final group consists of 35 men neither cleared nor expected to be charged. Thanks to WikiLeaks, we now know that even on the military’s account there is little to distinguish many of these men from the cleared pool, and indeed, of the nine of these men recently re-reviewed by military PRB panels, six have been cleared for transfer. For a long time people claimed Gtmo was full of men “too dangerous to release, but impossible to try,” presumptively because interrogators had contaminated otherwise-accurate evidence against them through use of torture. The notion that torture renders men at Gtmo untriable is laughable to any federal prosecutor – the usual remedy is to bring lesser charges that can be proved without using anyone’s past coerced confession. One example: attendance at a training camp – an allegation flung at nearly every Gtmo detainee at some point in the past – presumably was witnessed by thousands. Not all were tortured, or unwilling now to testify. The reality is that the “forever prisoners” are people the government never had any intent to charge – they are better described as “awaiting clearance” than “too dangerous to release.”
Of course, the iron curtain of secrecy that still remains in place around everything at Guantánamo conceals all of these ugly realities from public scrutiny. By January 2016 – less than a year from now – Guantanamo will have been open under a Democratic president longer than it was under President Bush. The anomaly has quietly become the new normal. We will – less quietly – continue to pay a price for that.
Shayana Kadidal is senior managing attorney of the Guantanamo Global Justice Initiative at the Center for Constitutional Rights in New York City. He is a 1994 graduate of Yale Law School and a former law clerk to Judge Kermit Lipez of the United States Court of Appeals for the First Circuit. In his twelve years at the Center, he has worked on a number of significant cases arising in the wake of 9⁄11, including the Center’s challenges to the detention of prisoners at Guantánamo Bay (among) them torture victim Mohammed al Qahtani and former CIA ghost detainee Majid Khan), which have twice reached the Supreme Court, and several cases arising out of the post9/11 domestic immigration sweeps. He was also counsel in CCR’s legal challenges to the “material support” statute (Holder v.Humanitarian Law Project, decided by the Supreme Court in 2010), to the low rates of black firefighter hiring in New York City, and to the NSA’s warrantless surveillance program. Along with others at the Center, he currently serves as U.S. counsel to WikiLeaks publisher Julian Assange. On behalf of plaintiffs including Assange, Glenn Greenwald, and other journalists, he led litigation that ultimately resulted in public release of over 550 previouslywithheld documents during the courtmartial of Pvt. Bradley (now Chelsea) Manning.