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Q&A With Kenneth Roth on Closing Guantánamo

Kenneth Roth

  • Country: The United States
  • Title: Executive Director, Human Rights Watch
  • Education: Brown University, Yale Law School
  • Awards: William Rogers Award (2009), Jean Mayer Global Citizenship Award (2004)

Michael Herb: Will closing Guantánamo really solve more problems than it is currently creating? Why is it necessary to close a prison that effectively does its job in keeping those who threaten the United States off the battlefield and out of the country?

Doug Bedell: What will moving prisoners actually solve? Are there estimates on the additional costs that will be incurred to transfer and house the prisoners?

Nikhil Jones: What does the planned closing mean for the current detainees at Guantánamo?

A: Closing Guantánamo is not simply about shutting a detention facility. It is about ending the use of long-term detention without trial -- as well as torture and other forms of coercive interrogation. Such abuse has lost the United States the moral high ground in the fight against terrorism. This is dangerous: it discourages the international cooperation that is essential for disrupting clandestine terrorist networks while providing recruiters for al Qaeda and its ilk with a bonanza of material to build rage among the next generation of terrorists.  

The current Guantánamo detainees should be prosecuted -- in regular courts, not substandard military commissions -- or released. Of the roughly 240 detainees, even the Bush administration found that some 50 posed no danger; the only sticking point was finding a country to accept them, since they risked torture or worse if returned to their countries of origin. Up to 100 others are Yemenis whom the Bush administration was also negotiating to return to Yemen or neighboring Saudi Arabia if the proper security guarantees could be put in place. The Obama administration is continuing efforts to transfer these detainees.

That leaves some 80 to 100 more difficult cases. Those who actually plotted terrorist activity should be prosecuted in regular federal courts, which have a long history of successfully prosecuting terrorism cases -- far more successful than the compromised military commissions. To convict someone of conspiracy to commit terrorism takes very little: proof of a criminal agreement between two or more people and a single step, no matter how innocuous, to advance the plot. Those convicted can be held in such detention facilities as the super-maximum security prison in Florence, Colorado, where big-time drug traffickers and other extraordinarily dangerous people are kept and from which no one has ever escaped.  

However, if the U.S. government cannot muster even that modest level of proof, it should release the detainees, who have been held without trial long enough. That involves some risk, but the world is full of dangerous young men, only a tiny fraction of whom are in Guantánamo. The sense of injustice caused by continuing Guantánamo is likely to generate far more terrorists than the handful who otherwise would continue to be held without trial were Guantánamo to continue in operation. 

Vince Larson: Has Obama essentially created a loophole for continuing to hold some detainees without trial by suggesting that there is a group of detainees who cannot be prosecuted but continue to pose a danger to the United States? Will such a policy create a Guantánamo by another name?

A: Yes and yes. Obama believes there are some detainees at Guantánamo who cannot be convicted but are too dangerous to release. Without seeing the files, we cannot know how big a problem that is. But to continue to detain them without trial would be to maintain the essence of Guantánamo, even if their place of detention were to be moved onshore. As noted above, their detention is unlikely to make us safer, since there is a good chance that it would generate more terrorists than it disables.  

Tom: The courts have held that the writ of habeas corpus, which prevents illegal detention, extends to Guantánamo. Does it not then follow that the Suspension Clause, which allows for habeas corpus to be suspended in the case of invasion or threat to public safety, is also applicable in Guantánamo?

A: The Suspension Clause of the U.S. Constitution says that the writ of habeas corpus cannot be suspended "unless when in Cases of Rebellion or Invasion the public Safety may require it." Because there has been no rebellion or invasion of the United States, there are no grounds for suspending habeas corpus in Guantánamo or anywhere else.

Greg R. Lawson: Even with the closure of Guantánamo, the United States is likely to continue practicing "extraordinary rendition" for those who are perceived to be high-value targets. Will this actually result in worse outcomes for those captured than simply leaving Guantánamo open?

Also, do you agree that despite some symbolic gestures from the Obama administration, the president is maintaining the majority of the detainee policies from George W. Bush's second term?

A: The Obama administration has said that it will stop using rendition to torture -- that it will send people only to governments that do not torture or mistreat suspects and will offer them fair-trial rights. That is a major departure from the Bush administration. However, the Obama administration may still fall short of its international obligations if, as CIA Director Leon Panetta has suggested, it sends suspects to countries that have a regular practice of torture so long as they provide flimsy diplomatic assurances that suspects will not be mistreated. Needless to say, governments that routinely flout their legal responsibility not to torture cannot be expected to respect a mere diplomatic promise. And monitoring individual cases is virtually impossible, because prisoners who have been tortured often won't report that fact for fear of being returned to the torture chamber in retaliation.

As for whether Obama is simply perpetuating Bush's detainee policies, I have been disappointed with certain aspects of Obama's response but still see major differences from Bush. For example, Obama insisted that the CIA abide by the army's very good, post-Abu Ghraib interrogation standards; Bush had vetoed a bill that would have required this. Obama closed Bush's secret CIA detention facilities, where detainees "disappeared" and were subject to torture. That said, some of Obama's reforms are more superficial. He is continuing Bush's use of military commissions, albeit after adopting policies that make it harder to use evidence derived from some but not all forms of coercion. While promising to close Guantánamo, he is threatening to continue its essence by still detaining people without charge or trial.

Laurence Shoup: What about the detention facility at Bagram Air Base, in Afghanistan? Is this not just another Gitmo? And is Obama expanding Bagram?

A: Bagram is just like Guantánamo insofar as the detainees come from outside of Afghanistan, but to date that accounts for only a small number of the detainees there. I would strongly oppose any effort to move more such detainees to Bagram - that, indeed, would create a Guantánamo II -- but so far that hasn't happened.  

It was disappointing that the Obama administration opposed granting the writ of habeas corpus to three detainees who had been brought to Bagram from abroad, since they are in the same position as the Guantánamo detainees. However, most of the 600 or so detainees at Bagram were picked up in Afghanistan. The Afghan government has a responsibility to prosecute them, as Afghan law does not allow detention without trial. Unfortunately, the Afghan judicial system is corrupt, barely functional, and in desperate need of assistance from the United States and other NATO countries. In the meantime, detainees should at least be notified of the basis for their detention, have access to a lawyer, and be able to challenge their detention before an independent adjudicator. That is not happening now.

Russell Gillespie: There has been considerable scholarly debate as to whether coercive interrogation actually produces actionable intelligence. Is there a danger that these cases overwhelm our traditional capacity to address the threat, from both legal and intelligence perspectives?

A: People facing torture often blurt out whatever they think the torturer wants to hear. Sometimes it is the truth, sometimes not. Moreover, torturers tend to try to produce information that they think their superiors want. For example, Ibn al-Shaykh al-Libi claimed under torture in 2002 that Saddam Hussein had provided training in chemical and biological weapons to al Qaeda. That, of course, was false, but Colin Powell used this "evidence" in his infamous presentation to the UN Security Council in February 2003 as a powerful reason for going to war.

Given the Bush administration's record, one should wonder how actionable any intelligence it received from torture really was. If it had to subject alleged 9/11 mastermind Khalid Sheikh Mohammed to 183 waterboarding sessions, one has to question the timeliness of such information and whether he even ever gave up the most valuable intelligence that he might have possessed.  

And there is a cost. Torture and other forms of coercive interrogation are jeopardizing the United States' ability to keep terrorism suspects off the street for the long term. If the Bush administration's use of torture ends up undermining criminal prosecutions, it may mean that the U.S. government can detain certain suspects only so long as it is willing to bear the considerable political and security costs of detaining people for years without trial. It would have been far better to have proceeded with prosecutions and secured lengthy prison terms that all would consider legitimate.

One other point: the claim by former Vice President Dick Cheney and others that his "enhanced interrogation techniques" made us safer needs to be scrutinized. Many people with knowledge of the program are skeptical of Cheney's claim, but for now it constitutes an alternative perspective. Until that perspective is definitively repudiated by a respected nonpartisan truth commission similar to the 9/11 Commission, there is a risk that a future president will resort to such illegal, immoral, and counterproductive techniques in the face of a future security threat, and that Obama will be criticized for not having used them in the event of a major terrorism attack during his term in office.  

Lisa Ellison: Is Congress's refusal to provide funding for Obama's plan to close Guantánamo and move some detainees to the United States a purely political calculation, or are there indeed some important practical considerations that make Obama's plan as currently articulated difficult to implement?

A: Congress's not-in-my-backyard attitude strikes me as the worst form of demagoguery and irresponsibility. As noted, Guantánamo detainees moved to the United States for prosecution or even detention without trial would almost certainly be detained at super-maximum security detention facilities such as the federal facility at Florence, Colorado, from which no one has ever escaped. Locals have talked about fears of their community becoming a target, but that's silly: Why would terrorists target obscure places such as Florence rather than high-profile cities where their actions would have the most damaging effect?

Then there's the separate issue of the 50 or so detainees who even the Bush administration said should be released but who can't be repatriated to their countries of origin for fear of torture or even death. The 17 Uighurs -- Muslims of western China's Xinjiang province -- are prime examples. The Obama administration is trying to convince various allies to resettle the majority of these detainees, but allies are unlikely to bear that political price without the U.S. government doing the same. These detainees should never have been held in the first place. It is in everyone's interest to get them out of Guantánamo as soon as possible. Congress's narrow-minded obstructionism is making that much more difficult.

Matt: What challenges does the president's plan to close Guantánamo pose for allies of the United States, particularly those who were fiercely critical of the previous administration's policy of detaining terrorism suspects offshore? What pressure is there for them to now step forward and help resettle detainees?

Edward Michaelson: Where and how should the United States aim to resettle the detainees currently held in Guantánamo? Should they be returned to their countries of origin or transferred to a third country, even though none seems to be particularly receptive? Do all these difficulties suggest most will end up in the United States?

A: Most of the detainees will not end up in the United States. As noted above, of the roughly 240 Guantánamo detainees, up to 100 are likely to be returned to Yemen or Saudi Arabia once proper security guarantees (and financial payments) can be worked out. Some 50 who have been found to present no danger will mostly be resettled in allied countries so long as the United States resettles some at home -- perhaps the Uighurs, given the existence of a significant Uighur community in the United States to help with resettlement. And while China has threatened other governments with retaliation for taking the Uighurs -- it wants to detain them and probably severely mistreat them -- it is unlikely to take action against the United States.

Finally, as for the 80 to 100 detainees who are believed to be dangerous, those who are prosecuted will most likely be detained in super-maximum security detention facilities in the United States. As for those, if any, who cannot be prosecuted, they would best be returned to their countries of origin (assuming no risk of torture) but will likely be held in the United States if the Obama administration goes forward with its misguided plans to continue the Bush practice of long-term detention without trial.

Jesse Sanders: Can the United States follow the example of Singapore, which "de-programs" more extreme Islamic radicals with training led by moderate imams who explain that the Koran does not support killing and terrorism, and that such behavior is not endorsed or recognized in any way by moderate Muslims? Singapore has released these prisoners, and very few have returned to their former behavior. Would it be possible to similarly change the mission of Guantánamo and other detention facilities?

A: Saudi Arabia also has a program like that, which I have visited. The U.S. government is quite interested in a version of it, especially for the Yemeni detainees it wants to repatriate, but this would be located in Yemen or Saudi Arabia, not in the United States. As for detainees who have committed serious terrorism crimes, or even conspired to do so, I would prefer to see them prosecuted. But if some cannot be prosecuted, such a program, leading to release with safeguards to prevent arbitrary indefinite detention, would be preferable to the political and security costs of prolonged detention without trial. However, the Saudi program does have problems. Detainees are locked up, at least initially; there is no recourse to judicial review through habeas corpus or some other mechanism; and while the vast majority of those sent to "rehab" were released within a few months, that could change if fears of recidivism grow.

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