The Prisoners’ Dilemma
Does WikiLeaks' newest document dump tell us anything we don't know about Guantánamo, or is it just another reminder that the United States' least worst place is now its most intractable legal problem? FP asked four experts on military law and interrogation to weigh in on the Gitmo papers.
Robert Chesney: That Was Then, This Is Now
Morris Davis: Turning Intelligence into Evidence Was Always a Mug’s Game
Matthew Alexander: The Worst Way to Get Good Information
Karen Greenberg: Inside the Vacuum of Ignorance
The most amazing fact about the more than 700 previously unseen classified Guantánamo documents released by WikiLeaks and several unaffiliated news organizations the night of Sunday, April 24, is how little in them is new. The information in these documents — admittedly not classified "top secret" but merely "secret" — spells out details that buttress what we already knew, which is this: From day one at Guantánamo, the U.S. national security apparatus has known very little about the detainees in custody. The United States does not know who they are, how to assess what they say, and what threat they ultimately pose.
Given this vacuum of ignorance, U.S. officials decided at the outset that it was better to be safe than sorry. Therefore, any imaginable way in which behavior or statements could be deemed dangerous led to individual detainees being classified as "high risk." The result was the policy we have seen since 2002 — a policy of assessing potential danger based on details like what kind of watches the detainees wore, the way they drew on the dirt floors of their cages, and whether they had travel documents on them. In addition, the just-released documents reaffirm the fact that much of the material on the detainees apparently came from hearsay derived from what seems to have been a limited number of interrogations, some performed under circumstances amounting to torture.
It is not just the conclusions of Guantánamo critics like myself that are being verified by these newly found documents. The conclusions of the judges who have sifted through available information to determine just who deserves to be at Guantánamo and who is being held on the basis of insufficient evidence have also been reinforced. In 58 habeas cases spanning both George W. Bush’s and Barack Obama’s administrations, federal judges have determined that in 36 of the cases there is insufficient evidence to hold these individuals and that often the detention was based on information obtained through hearsay, frequently the result of torture. In other words, the little evidence that existed was largely unreliable.
The sad fact is that these documents tell us more about ourselves than about the detainees. They tell us that U.S. officials to this day know very little based on hard evidence about the majority of those who have been held at Guantánamo, that assessments of risk have all too often been based on flights of imagination that tend to enhance the sense of power and capability of al Qaeda, and that the criteria for determining risk are at best murky. Those deemed to pose a risk ranged from individual detainees who proclaimed angry threats against their guards to those who were believed to have been actively involved in terrorism.
Former Defense Secretary Donald Rumsfeld once pointed out, in reference to the failure to find evidence of weapons of mass destruction in Iraq, that absence of evidence is not evidence of absence. Although the quip may seem facile, it is actually a candid assessment of what has gone wrong at Guantánamo from the time it opened in January 2002. It continues to go wrong to this day. The proper, lawful, most security-minded restatement of Rumsfeld’s maxim would be this: Absence of evidence requires better intelligence, more careful judgments, and more savvy realism. Without facts, it is not only the just treatment of detainees that is at issue — it is the security of the United States itself.
Karen Greenberg is executive director of the Center on Law and Security at the New York University School of Law and author of The Least Worst Place: Guantanamo’s First 100 Days.
Robert Chesney: That Was Then, This Is Now
The New York Times calls them the "Guantánamo Files," a phrase that nicely parallels the "Pentagon Papers." But what exactly are they? In substantial part, the "files" consist of Detainee Assessment Briefs, or DABs. As the Pentagon has explained, DABs are snapshots in time, reflecting the analysis of intelligence available to the military with respect to particular detainees during George W. Bush’s administration. They are not up to date; most notably, they don’t reveal the analysis, conclusions, or information made available to the Guantanamo Review Task Force in 2009. But for better or for worse, they do shed considerable light on what at least some in the military believed to be true, or rather what they believed was likely to be true, regarding detainees during the Bush years. And therein lies a problem.
The publication of the DABs will add fuel to at least two fires that already complicate Barack Obama’s Guantánamo policy. First, it will fuel the "recidivism" backlash movement — that is, it will provide ammunition to those who say the United States has been too reckless in releasing or transferring detainees from Guantánamo in the past (537 times from 2002 through 2008, 67 more times since then. You can expect supporters of statutory constraints on the release and transfer of detainees to quote often, for example, from NPR’s claim that "NPR and The New York Times have documented 42 instances of transferred or released Guantanamo detainees returning to terrorism or insurgent activity or otherwise reassociating with al-Qaida." But imposing such constraints is unwise, in my view. As my Brookings Institution colleague Benjamin Wittes recently wrote:
I applaud the Bush administration for its creative efforts over a great deal of time to repatriate many Guantanamo detainees under circumstances that protected American security. I will not criticize the assumption of risk those efforts involved — though some of them did not pay off. And it has always bothered me that the Left was unwilling to recognize the seriousness of the efforts it undertook.
I similarly applaud the Obama administration for zero-basing the prior administration’s judgments about the remaining detainees and making its own assessments of the residual population. Those efforts too involved the assumption of risk. And it bothers me [that] a lot of … the Right, which tolerated the Bush administration’s assumptions of risk with equanimity, treat Obama’s assumptions of risk as the weak-kneed puttering of the insufficiently-committed.
We all knew that both administrations were taking some degree of risk in the name of liberty, in the name of America’s standing in the world, and in the name of flexibility in a war that did not much resemble prior conflicts. We all knew there were documents like this with which we would at some point be able to wax indignant at those assumptions of risks, even as we simultaneously wrung our hands about fairness and endless detention and all of that jazz. It should be a matter of honor now not to pretend otherwise.
On the other hand, the publication of the DABs also revives an older, competing narrative in which the problem with Guantánamo is not the "false negative" but rather the "false positive." Writing in this vein over at the Atlantic, for example, Conor Friedersdorf understandably excoriates the government for dragging its feet in the past when it came to releasing certain detainees whom the DABs indicated posed no threat, but less understandably he goes on to conclude that Guantánamo even today is a place where "the rule of law is abandoned, replaced by political calculation, Kafkaesque procedures, and whim."
Now, don’t get me wrong. I actually agree that false positives are a central concern at Guantánamo. So are false negatives for that matter, and both should be central concerns for any detention system. But the important point for now is that the image of Guantánamo as a lawless place with Kafkaesque procedures and detention at government whim bears no resemblance to the situation that has existed there for the past several years. The detainees have had the right to challenge their detention through habeas corpus review, before a federal judge and with the robust assistance of counsel, for nearly three years now. Many have been released as a result, while others remain detained because a federal judge has concluded after discovery and an evidentiary hearing that the law permits detention in that person’s circumstances and that the government has proved its case by a preponderance of the evidence (the Uighurs not to the contrary, as recently explained by Supreme Court Justice Stephen Breyer). That doesn’t mean the current process is perfect, of course. But it is neither lawless nor a matter of executive discretion.
Robert Chesney is a professor of law at the University of Texas School of Law, a distinguished scholar at the Robert S. Strauss Center for International Security and Law, and a nonresident senior fellow at the Brookings Institution. He blogs on law and national security at www.lawfareblog.com.
Morris Davis: Turning Intelligence into Evidence Was Always a Mug’s Game
Reading the Guantánamo documents released Sunday night, April 24, brought me back to my two years as chief prosecutor for the military commissions at the Cuba detention facility — a tenure that gave me a crash course in the flawed prosecution of the war on terror. When I was appointed to the job in September 2005, I arrived believing the false bill of goods Defense Secretary Donald Rumsfeld and others in George W. Bush’s administration had sold the public on the men who had been captured in the early years of the war on terrorism: that the detainees were the "worst of the worst," a group of savage zealots who would, given the chance, gnaw through the hydraulic lines of the aircraft flying them to Gitmo in order to kill Americans.
But as I started talking with people who had spent months or years working on Gitmo cases and began reviewing the documents — including ones like those in the newly released batch — I soon realized that though some fit that description, a great many others did not. Some were teenagers; some were old men who lacked the ability to gnaw through a boneless chicken breast much less a hydraulic line; and some were foreigners picked up in Afghanistan because they happened to be wearing Casio watches like the ones that al Qaeda had allegedly once handed out in an Afghan training camp.
Playing the fear card was — and still is — compelling propaganda, but it was a lie that painted a false picture, one in which the detainees were a homogeneous group that had to be locked away forever or life as we knew it would end. More than nine years in, the real picture of Guantánamo is still in many respects out of focus and hard to interpret. The newly released documents add some definition, but the picture remains mostly the same. The detainees run the gamut from extraordinarily dangerous men to those who were simple dupes.
The documents also underscore the fact that Guantánamo was an intelligence operation intended to collect actionable information, not a law-enforcement effort that was expected to produce evidence that would later prove guilt in a criminal trial. And yet the information gathered there — the generally poor quality of which is reflected in the newly released documents — was ultimately supposed to pass for exactly that: evidence that would be used to convict people as war criminals. It was, as I have said before, like being handed a box of square pegs and told to fit them into round holes. In some instances the information detainees provided could be corroborated. But in others, the information was collected through extraordinary means or from detainees who were known to be unreliable. By the time I arrived at the prison facility in 2005, there was significant friction between the intelligence and law enforcement communities. Techniques that were acceptable for one group were often not for the other. Information that one deemed worth putting in writing as a fact, the other questioned. The documents don’t resolve these sorts of debates — they only add more fuel to the argument over whether we should treat terrorism as warfare or criminal activity, and they highlight the complexity of trying to have it both ways at once.
Morris Davis, a retired Air Force colonel, was the chief prosecutor for the military commissions at Guantanamo Bay from 2005 to 2007. He is the executive director of the Crimes of War Project in Washington.
Matthew Alexander: The Worst Way to Get Good Information
The documents released Sunday, April 24, by WikiLeaks and various media outlets concerning the 779 detainees who have been held or are still being held at Guantánamo Bay reveal few surprises. It isn’t news, for example, that many of the detainees who were held — and quite a few who are still being held — are innocent of any crime related to terrorism. And what has the United States gained from their near decade of detention?
The answer, the documents suggest, is very, very little. As a former senior military interrogator in Iraq and a member of an elite special operations raid team, I participated daily in the decision-making process that resulted in the detention or release of numerous detainees in that country. These documents reveal that what was true in Iraq has also been true at Guantánamo: that when it comes to extracting intelligence from the war on terrorism’s detainees, America’s biggest enemy is its own ignorance.
America’s greatest weakness in interrogation practices since 9/11 has been its inability to understand the culture of its enemies. Interrogators and analysts routinely assumed that stereotypes about detainees were true. They assumed, for example, that Arabs and Afghans grew up in a culture of violence and therefore only understand violence — or, as we recently learned with the release of the radio transcripts of a Predator crew that killed innocent civilians during an airstrike in Afghanistan, that stopping to pray is a sign that an Afghan must be a member of the Taliban.
We have lost troves of intelligence because of this failure to properly analyze and understand the men whom we interrogate — not just guilty men, but also innocent men. Innocent Iraqis provided my team crucial information during our successful hunt for Abu Musab al-Zarqawi, the leader of al Qaeda in Iraq, and other insurgency leaders, because we treated them with respect and paid them compensation when we inadvertently raided their houses. I even convinced a father, innocent of any association with terrorism or the insurgency, to turn in his son, who was running weapons from Iran to Iraq. Eric Maddox, the Army interrogator who located Saddam Hussein, has similarly pointed out that innocent civilians provided some of the most valuable information during his hunt for the former dictator, such as the details of Saddam’s diet.
These innocent detainees, however, will never provide accurate, timely intelligence if tortured and abused or detained indefinitely on false charges. More importantly, indefinite detention of innocent people and torture and abusive interrogations — all of which have been credibly alleged in the case of Guantánamo detainees — result in several other long-term negative consequences. First, they make other detainees and civilians less likely to cooperate with interrogators because they see us as oppressors. Secondly, these actions denigrate our own forces by lowering them to the standards of our enemies, who do not follow the laws of war or basic American principles, such as our fundamental belief in due process and the right of every individual to not be tortured. And finally, they result in al Qaeda being able to recruit additional fighters because they use America’s actions as propaganda.
This last point is the most important in evaluating U.S. detention policies in light of the recent release of new documents. U.S. national security policy, and U.S. foreign policy in general, has for too long focused on stopping terrorist attacks. That’s of course a worthy goal, but focusing on short-term wins at the expense of long-term gains will never result in the decline or defeat of al Qaeda. The only way to eliminate al Qaeda or render the group obsolete is by denying it new recruits. That is why America’s policy of detaining innocent people and then forging false evidence against them by coercing statements out of other detainees is so counterproductive, as was the case of an Afghan shepherd falsely accused of participating in a roadside bomb attack in May 2003 and held until 2006. Sometimes the best sources are a pair of innocent eyes that can lead you in the right direction. Instead, our actions are a gift to terrorist recruiters. We have cast ourselves as hypocrites — putty in al Qaeda’s hands. And that only prolongs the conflict.
Matthew Alexander is a former senior military interrogator and the author of Kill or Capture: How a Special Operations Task Force Took Down a Notorious al Qaeda Terrorist and How to Break a Terrorist. He is currently a fellow at UCLA’s Burkle Center for International Relations.