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Guantánamo, Six Years Later

The facts reinforce the notion that preventative detention doesn't make us safer. How, then, are we still left with hundreds of detainees at Guantánamo six years into this mess?
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Today marks six years since the detention camp at the Guantánamo Bay Naval Station was opened. The first 20 men arrived on January 11, 2002. Almost 800 men have been held there since then; around 500 have been sent home; only five have seen formal charges under the Military Commissions Act; and only one, Australian David Hicks, has been convicted -- after a guilty plea that resulted in a nine month sentence and, astonishingly, a 12-month gag order.

Of the 500-odd men released, none has received an apology. Instead, most receive an agreement they are asked to sign, stating that while they were an "enemy combatant," they agree not to go back to that way of life.

Presumably the people who drafted this form thought it was a good way to cover the administration's behind. Unfortunately for them, the military's own records betray the lie. Thanks to those records (and to the fact that lawyers have had access to the detainees) we now know that most of the detainees at Guantánamo have no link to terrorism. Only 1 in 20 were captured by U.S. forces; the rest were captured by third parties and frequently sold to us in exchange for bounties paid to warlords or hungry villagers during the chaos of the Afghan war. As with every indiscriminate system of detention, the result was a very poor yield of the guilty and a very large number of innocents being detained. Also predictable was the pressure on the interrogation process created by feeding so much chaff into the system. That pressure -- along with decisions made at the highest levels of government to discard centuries of practical experience and resort to coercive methods of interrogation -- led to widespread, systematic torture: sexual abuse, force feeding, withholding of medical treatment for serious injuries, and endless varieties of physical and psychological brutalization.

Sweeps like the ones that sent most of the detainees into Guantánamo tend to rely on profiling by race, ethnicity, and religion. Accompanied by abusive treatment and torture in detention, it's no surprise that those whole communities (at home and abroad) begin to hate us as a nation. By costing us the trust of those communities, law enforcement loses its most valuable resource for uncovering hidden terrorist conspiracies: their "eyes and ears on the street." The loss of legitimacy and public relations backlash in foreign countries also causes those nations to hesitate in cooperating with us in global multilateral efforts against terrorism. And all that puts to one side the fact that most of the people swept in will be innocent -- that law enforcement and interrogators will have wasted their efforts on nobodies. None of that makes us safer.

The administration has defended itself by presenting its mass detentions as a well-planned policy of "preemptive arrest" -- of "not wait[ing] for threats to fully materialize" as the president put it -- but that practice violates every traditional notion of how best to disrupt terrorist conspiracies. The standard law enforcement playbook on investigating big criminal conspiracies says that you treat the first suspect you find as the tip of the iceberg, and, instead of arresting him (and holding an immediate news conference, as John Ashcroft was wont to), you direct more investigative resources at him -- tail him, wiretap his phone, infiltrate the criminal enterprise, all in the hope that he'll lead you to the rest of the conspirators. That also ensures you can bring solid criminal charges against the first conspirators caught, charges that give them an incentive to cooperate against their co-conspirators higher up the pyramid.

On the battlefield you arrest the enemy at first sight. But that "war" mentality doesn't work well at the painstaking process of investigating terrorist conspiracies -- it causes you to lose the sunken part of the iceberg. Arresting the first suspects too early means that you lose the ability to gather intelligence about the involvement of others in the plot. Keep them out there and do solid investigative work on them, and they become a resource for law enforcement.

The facts about who the detainees at Guantánamo are reinforce this notion that preventative detention doesn't work to make us safer. How, then, are we still left with hundreds of detainees at Guantánamo six years into this mess? Major General Jay Hood, then the commander of the detention camp, admitted to the Wall Street Journal that "[s]ometimes we just didn't get the right folks," but innocents remain at the base because "[n]obody wants to be the one to sign the release papers. ... there's no muscle in the system." While the courts are supposed to provide that muscle, the last major act of the Republican-controlled Congress in 2006 was to strip away the right of the courts to hear challenges to the legality of their detentions. The Supreme Court has yet to act to reverse Congress' ill-considered actions. And, as Major General Hood acknowledges, no one in the military or the White House has any incentive to admit error in Guantánamo.

As much as the camp has proved to be a public relations disaster for America and a failure as a counterterrorism measure, it will probably be around when the next president is inaugurated. In both respects, it resembles our disastrous national misadventure in Iraq. Both situations are beyond repair, yet, as in Iraq, there is every indication that President Bush intends to prolong the mistake so he can pass the responsibility for cleaning up his mess to his successor.

Will things inevitably be different next year? A few months ago I reviewed David Cole and Jules Lobel's book on this site, in which the authors say "if a Democratic president had been in office on September 11, 2001, many of the abuses we recount here would likely have happened anyway." Plenty of recent revelations reinforce this impression--from the group of Democrats and Republicans in Congress briefed on torture techniques and asking only if the methods were tough enough, to the Democrats' Congressional leadership knuckling under and passing legislation to whitewash the NSA Surveillance Program last August.

As Cole and Lobel point out, "[h]istory demonstrates that executive officials of all partisan stripes tend to favor a preventative paradigm in times of national crisis" even though the historical record shows it has rarely been effective. It's normal human psychology - and every politician's psyche, right or left - to want to take the most dramatic, coercive steps in response to a crisis. Mass detention and medieval interrogation techniques fit the bill. The end result of all of this is that "the slow and painstaking work of assessing vulnerabilities, collecting and analyzing information, shoring up our defenses, [and] building coalitions" is neglected. As this "report card on the war on terror" (published in the L.A. Times by Cole and Lobel) indicates, it hasn't left us safer. Quite the opposite.

With that in mind, here's my own "report card" on how the candidates have come out so far:

Clinton: Consistent advocate of Gtmo closure; co-sponsored Feinstein bill to close it down. A bit ambiguous at times on coercive interrogation; had wanted more detail on existing practices, later stated torture "cannot be American policy. Period."

Edwards: says "We are not the country of Abu Ghraib or Guantánamo.... We are Americans and we're better than that." Would prohibit torture and rendition, and close Gtmo.

Giuliani: "[N]ot inclined to agree right now [with Colin Powell] that we should necessarily close Guantánamo." Better on torture; like most former prosecutors, understands how the professionals work conspiracy cases: "You know how I put hundreds of Mafia people in jail? ... we arrested them, we got very significant charges on them, and we questioned them for long periods of time. With very aggressive techniques. Never ever tortured anybody."

Huckabee: "I visited Guantánamo just about a year ago. ...I [have] visited every single prison in the Arkansas prison system, and I can tell you most of our prisoners would love to be in a facility more like Guantánamo...." Denounces torture and states that waterboarding is torture.

McCain: Wants Guantánamo closed because it damages U.S. credibility abroad; would move the prisoners to Ft. Leavenworth in Kansas (which would make judicial review of detentions inevitable), and is against indefinite detention without charge. Knows torture firsthand; is against it.

Obama: spokesman says: "supports Guantánamo closing and is still working to find the best possible solution for the prisoners who are there right now." On torture: "The secret authorization of brutal interrogations is an outrageous betrayal of our core values, and a grave danger to our security. ... Torture is how you create enemies, not how you defeat them. Torture is how you get bad information, not good intelligence. Torture is how you set back America's standing in the world, not how you strengthen it."

Romney: "I believe that Guantánamo plays an important role in protecting our nation from violent, heinous terrorists." "Guantánamo is a symbol of our resolve." "The food down there is unbelievable. This is not this gulag; this is a modern prison which treats people with dignity and respect." Said during June debate: "We ought to double Guantánamo." (Spokesman later clarified that Romney meant he wanted "to go out and catch more terrorists and doesn't want to import them [to the U.S.]") Also supports "enhanced" interrogation techniques; won't rule out waterboarding.

If the record is a bit unclear for some of the candidates on some of these issues, the time for voters to demand absolute clarity is now. Remember, later in the cycle candidates will typically migrate to the center (meaning the better ones now may lose conviction later, given the electorate's split on these issues). Early promises can prove to be hollow: President Clinton said he would close the first camp at Gtmo (for Haitian refugees) during the 1992 campaign. Four days before his inauguration, he reneged. And the efforts of my current colleagues at the Center for Constitutional Rights and then-fellow law students in the courts for the Haitians didn't prevent this legal black hole from reemerging a decade later.

--January 11, 2008