A Guantánamo Exit Strategy

MEMORANDUM

To: Donald Rumsfeld, Secretary of Defense
Sen. John Warner; Chair, Senate Armed Services Committee
Rep. Duncan Hunter; Chair, House Armed Services Committee

From: Phillip Carter

Re: Shutting down Guantnamo Bay: A Roadmap

Its not hard to see the damage that the Guantnamo Bay detention facility in Cuba is doing to the American war effort. Whatever the reality, the perception is that we are doing bad things there, and that perception is eroding U.S. support and credibility. In this type of warfare, seizing the moral high ground is as important as seizing key terrain, and the United States cannot afford this damage much longer.

The most extreme criticisms of Guantnamothat it has become a modern-day gulag, with egregious acts of torture practiced there at your directionexaggerate matters greatly and ignore the legitimate and legal imperative to harvest intelligence. On the other hand, there have been significant abuses documented there. Perhaps more important for those who justify the facility on grounds of necessity, the U.S. intelligence community does not seem to have gotten much bang for its buck. Most reports paint an underwhelming portrait of the detainee population, thanks largely to decisions to hold the most sensitive al Qaeda detainees at secretive facilities elsewhere. In the final analysis, it appears that the United States is running a facility that costs a great deal and provides very little.

Outlined below are several policy recommendations for navigating the ambiguities in the war on terror and placing U.S. detention policy on firmer ground than Guantnamo Bay:

Get Congress off the Sidelines: The Constitution envisions power sharing in times of war. As commander in chief, the president (working through the secretary of defense and others) must wield his executive power to hunt down, interdict, arrest, or kill the nations enemies. Further, the president must direct the interrogation of those captured, consistent with the laws of war, and gather intelligence to prevent another attack. But congress has constitutional responsibilities as well, including to make Rules concerning Captures on Land and Water and define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations. If the United States faces a new kind of threat from global terror networks such as al Qaeda, then congress must create the legal architecture to address it. As chair of the House and Senate Armed Services Committees respectively, you must take the lead. Further, if the administration is far-sighted, it should welcome congressional involvement, both because it is better to have congress engaged than sniping from the side, and because the Supreme Court is more likely to endorse presidential power when it has congressional authorization.

Clarify the Presidents War Power: The current authorization for the use of military force was introduced in the Senate a mere 72 hours after the Sept.11, 2001, attacks, with the Pentagon still smoldering across the Potomac. It contains broad, sweeping language of the sort one would expect at such an uncertain moment in American history. The predictable result has been litigation over its exact meaning, particularly in the area of detention. The Bush administration has argued that the law authorizes all wartime measures, including the detention of foreigners and U.S. citizens captured on foreign and domestic battlefields as unlawful enemy combatants, without charges or process, for the duration of hostilities. (In June 2004, the Supreme Court circumscribed this power with its Hamdi v. Rumsfeld decision, but the exact contours of that decision remain uncertain.) Congress should act now, with the benefit of four years of hindsight, to define and limit the presidents power in the war on terrorism. Ambiguity begets abuse, and we now know enough about the nature of the war to start making wise, detailed policy choices.

Determine Whos Who: Four years after September 11, the U.S. government still lacks an effective and principled system for deciding whos an enemy combatant, whos a criminal, and who falls into a gray area between the two. Groups opposing the United States purposefully blur these boundaries by hiding among the civilian population, a time-honored insurgent strategy. That strategy is working. More than one year after the Abu Ghraib scandal broke, interrogators and lawyers in Iraq still report extensive confusion about the legal status of detainees and the appropriateness of certain legal and interrogation procedures.

Congress must develop a taxonomy of terrorism to sort out detainees in a way that makes operational and legal sense. Definitions should not hinge on the wearing of uniforms or other anachronistic criteria. You cannot create categories that will apply cleanly to every case, but you can make the sorting process more transparent and add a measure of justice and legitimacy to a system sorely lacking in both.

Fortunately, the Defense Department already has a solid policy in place for the processing of detainees on the battlefield: Army Regulation 190-8 (Enemy Prisoners Of War, Retained Personnel, Civilian Internees and Other Detainees). Unfortunately, the White House, Justice Department, and Pentagon have gotten in the way of consistent implementation. The two congressional armed services committees should act to codify AR 190-8. Doing so would prevent the executive branch from nullifying this regulation and buttress the rule of law in the conduct of American military operations.

In addition to this policy, the Defense Department must develop better screening mechanisms for its implementation. Todays intelligence analysts and interrogators have come a long way since 2002, when Arabic language and cultural knowledge was nearly nonexistent in the Defense Department. Still, our intelligence community lacks the human intelligence assets and capabilities it needs to effectively interrogate prisoners from that region. That hobbles the militarys ability to make sorting decisions, let alone gather valuable intelligence. The war against Islamic fundamentalism is unlikely to go away soon; the Defense Department should redouble its efforts to build its linguistic and cultural intelligence capabilities for the Middle East.

Repudiate All the Torture Memos: In December 2004, the Justice Department rejected the reasoning of its infamous August 2002 torture memo, which effectively defined torture out of existence. Several other memoranda published by the Defense Department and other government agencies, however, appear to still be in effect. Reports indicate that several classified legal memoranda authorize a list of coercive interrogation practices for these agencies, including the CIA. Notwithstanding powerful rhetoric from Sen. John McCain and Sen. Richard Durbin, among others, congress has done little to repudiate these memos. The time has come for our elected representatives to take a stand by stating that it is the policy and law of the United States not to torture its enemies, nor subject them to cruel, inhuman, or degrading treatment.

Likewise, the Defense Department must make this policy clear to its troops in the field and eliminate any military necessity exception to this rule. The slope from small war crimes to large ones is slippery; in the heat of battle, some necessity may always be found to justify even the most heinous of acts. Bright-line rules are the only ones that work in wartime, and the secretary of defense must lay down the law as the constitutional officer responsible for civilian control of the military.

Get Rid of the Military Commissions: In November 2001, President George W. Bush unilaterally declared that the United States would try captured foreign terrorists by military commission, similar to how the United States tried German saboteurs during World War II. However, its not clear the president has the power to do so, and the courts have harshly criticized the rules he adopted. Eventually, the Supreme Court may have to resolve the matter. But theres an easier solution than litigation: congressional action. If the United States wants to try these terrorists instead of simply incarcerating them for the duration of the war, then congress should amend the Uniform Code of Military Justice to provide for that option. Congress should spell out clearly the terrorist acts that constitute war crimes eligible for military commission, the procedures for those trials, and the procedures for appeal. Congress should also draw up rules of evidence for the commissions, which must grapple with such thorny issues as whether evidence produced in coercive interrogations can be used. In doing so, congress should ensure these commissions conform both to the Uniform Code of Military Justice and the customary laws of war.

Embed Reporters at Guantnamo: The Pentagons embedding experiment during Operation Iraqi Freedom was perhaps the greatest success of the war. The reporters traveling with U.S. and coalition units brought an unprecedented level of transparency to the war, enabling the world to see both the humanity and the effectiveness of American combat forces. If there is one thing in short supply at Guantnamo, it is transparency. That, coupled with the administrations obfuscations about torture, interrogations, detention policies, and other matters related to the island base, has completely destroyed any credibility the United States has regarding this facility. Embedding reporters at Guantnamo, and in military prisons generally, may be the only way to tell the American side of the story with any credibility. These journalists will undoubtedly uncover problems, because problems exist in any military unit or facility. Additionally, measures will have to be taken to ensure the journalists do not violate the 3rd Geneva Conventions prohibition on subjecting detainees to public humiliation. But, on balance, that is a risk the United States must take to get its story told. This measure will be particularly important as a preemptive step if the United States chooses to eventually shut down Guantnamo and release a group of detainees who will be sure to tell their stories.

Retain the Most Dangerous: Even if the United States closes Guantnamo, it should not release the worst of the worst, estimated to constitute between 10 percent and 30 percent of the prisoner population there. The intelligence community should work with allied intelligence agencies to identify these individuals for continued detention, and screen them thoroughly to eliminate both false positives and false negatives. Next, the U.S. military should construct a new detention facility somewhere other than Guantnamo Bay. Its very name has simply become too tainted for future use. One possible location would be the island base of Diego Garcia in the Indian Ocean; another option would be to locate separate detention facilities in secure areas of Iraq or Afghanistan for prisoners captured in those respective countries. The United States should build and operate this facility in accordance with international law, and invite reporters and human rights officials to observe. American interrogators should continue to question the prisoners there, but they should do so in accordance with the laws of war, which generally allow interrogation, but not coercive interrogation measures such as those authorized over the past few years.

Send the Rest Home: Although the 3rd Geneva Convention clearly allows the United States to detain prisoners of war for the duration of active hostilities, it is no longer a prudent course of action with respect to the bulk of the Guantnamo population. Leaked reports from the military and the Red Cross indicate that the vast majority of prisoners have no intelligence value. They were either foot soldiers for the Taliban or al Qaeda; snatched up by allied forces for a U.S. bounty; improperly screened at the point of capture; or somehow swept up and captured as a victim of circumstance. Holding these prisoners does keep them off the battlefield. But their continued captivity does more harm than good to the U.S. war on terrorism, and they should be released to their home countries for further detention or release.

The very word Guantnamo carries a negative connotation throughout much of the world, one that is antithetical to American values and Americas strategy of spreading freedom and democracy. Its time for the United States to cut its losses there, while salvaging what it can.