Seven Questions: How to Close Gitmo

As soon as Barack Obama was elected president two weeks ago, the calls started piling in: Close the U.S. prison at Guantnamo Bay. Human rights organizations, pundits, U.S. allies, and much of Congress support the idea, which now looks certain to top the incoming administrations agenda. “I have said repeatedly that I intend to close Guantnamo, and I will follow through on that,” Obama told Steve Kroft Nov. 16 on 60 Minutes. “I have said repeatedly that America doesnt torture. And Im gonna make sure that we dont torture. Those are part and parcel of an effort to regain Americas moral stature in the world.”

But shutting down Guantnamo will be no easy task. Of the prison’s 255 remaining detainees, 23 are still facing various charges. Relocating any or all of the prisoners to U.S. soil could prove contentious and legally complicated. To sort out the issues, Foreign Policy‘s Elizabeth Dickinson spoke with Matthew Waxman, former deputy assistant secretary of defense for detainee affairs. Waxman, the first ever to hold the position, was appointed after the Abu Ghraib incident in 2004 to advise then Secretary of Defense Donald Rumsfeld. Just over a year later, Waxman left for the State Department, having fought unsuccessfully to extend the protections of the Geneva Conventions to every terrorism detainee.

Foreign Policy: Many in the United States and in the world are hoping that President-elect Barack Obama will close the Guantnamo Bay prison as one of his first moves in office — but it looks like this wont be so easy. What are some of the legal hang-ups that could postpone closure?

Matthew Waxman: President Obama may announce quickly his intention to close Guantnamo Bay, but I wouldnt expect it to close overnight. The operational obstacles include some difficult diplomacy with home governments in an effort to transfer or release many detainees under an adequate set of humane treatment as well as security assurances. And there are logistical issues of where to detain [the prisoners] and how to secure them. Of the remaining [prisoners in Guantnamo] whom we intend to continue to detain, presumably [they would be held] in the United States.

It’s another question to figure out on what legal basis to continue holding detainees. There are basically three choices: We can prosecute them in U.S. courts; continue to hold them as enemy combatants; or seek new legal authority from Congress for preventive detention. Each of those has its own subchoices. For example, if you prosecute [a detainee], do you use federal criminal courts, do you use courts-martial, do you use military commissions, or do you go to Congress to create some new courts? I dont expect Obama’s administration to make any firm decisions on [these issues] until it has had its own opportunity to review the cases and make its own determinations about which can be prosecuted.

FP: Peter Bergen and Ken Ballen, in an article for ForeignPolicy.com, argued that Most of [the detainees at Guantnamo] have never posed any real risk to America, for the simple reason that the vast majority of them were never enemy combatants in the first place. What’s your reaction to that statement?

MW: I have no doubt that some individuals were brought to Guantnamo who never should have been, but I also believe that some detainees were released under the belief that they didn’t pose a threat, and that [conclusion] turned out to be wrong. Certainly you have some extremely dangerous individuals, including al Qaeda masterminds like Khalid Sheikh Mohammed, but you also have some lower-level threats and even some individuals who dont pose a serious threat to the United States and who ought to be returned.

FP: If I were a detainee in Guantnamo today, what would my legal status be? What rights would I have?

MW: The detainees are held as enemy combatants in an ongoing armed conflict. According to the U.S. government, they can be detained until the end of hostilities with al Qaeda. Since the Supreme Court’s decision in the Boumediene et al. v. Bush case, its now established that the detainees at Guantnamo have a constitutional right to habeas corpus — in other words, a right to challenge in federal courts the legal and factual basis of their detention.

Many detainees have access to lawyers at this point. There are hundreds of habeas corpus cases that are ongoing — there is very active litigation that is going on now challenging individual detentions. If [detainees] were simply brought into the United States, most of those cases would simply continue forward. If they were prosecuted or held under other legal arrangements, most likely, there would be grounds for other habeas corpus cases, but these would need to be refiled to challenge the detention.

FP: If some of these detainees are tried in U.S. courts — people such as Khalid Sheikh Mohammed — how much of their testimony from interrogations using techniques such as waterboarding would be allowed in court?

MW: One of the issues likely to arise in many Guantnamo prosecutions will be allegations of mistreatment and even torture by U.S. personnel. And not only will prosecutions potentially expose some past U.S. conduct, but that conduct might even spoil the chances for a conviction in some cases.

FP: If Guantnamo is closed, what options would you recommend to President-elect Obama for structuring the capture and detainment of future terrorism suspects?

MW: An important point to make is this: The problem of Guantnamo goes beyond the 250 or so individuals currently detained there. The United States will continue to capture, detain, and need to interrogate suspected terrorists long into the future. And the bigger question than whether to hold them at Guantnamo or not is one of legal authority. On what legal basis and according to what standards will the United States conduct detentions? That is a huge issue facing the new president. One of the most important lessons of the Bush years is that any answer to that question ought to be made in close consultation with Congress and with U.S. allies.

FP: How would you describe the legacy of the Bush administration in detention? What did they get right and wrong? Legally speaking, did they end up setting back their own effort?

MW: A strategic error of the Bush administration in the immediate aftermath of Sept. 11 was its overemphasis on operational flexibility and underemphasis on legitimacy. It took legal interpretations in order to maximize its freedom to detain and interrogate without adequately recognizing the dangers to coalition cooperation, U.S. reputation abroad, and legal principles that the United States stands for and promotes.

FP: To paraphrase your old boss, Donald Rumsfeld, are U.S. detention policies currently producing more terrorists than they are removing from the world?

MW: It’s impossible to know. On the one hand, U.S. detention policies play an important role in neutralizing threats and gaining critical intelligence. However, overbroad detention or perceptions of abuse have also no doubt played into the hands of our enemies and undermined support for U.S. operations among key audiences. Looking forward, the critical task of the new administration is to recalibrate detention policy in a way that mitigates all of those dangers.