After Guantanamo: The Way Forward
Guantanamo Bay has put our soldiers and citizens at risk, become a rallying cry for our enemies and a recruiting tool for the global terrorist network. Every day, it undermines our ability to promote freedom and democracy in the Arab and Muslim world.
The war on terrorism has now outlasted the American involvement in World War II, with no end in sight. It is clear that we need to change course.
The president should take the following steps:
- Close the prison at Guantanamo Bay and shift detainee operations to Ft. Leavenworth, KS.
- Abandon failed interrogation policies and conduct interrogations according to the Army Field Manual.
- Prosecute detainees in general courts-martial under the Uniform Code of Military Justice.
- Transfer detainees of low security risk and low intelligence value back to their home countries.
Reports from the military and the media indicate that the more than 500 detainees at Guantanamo have been shackled in “stress positions,” subject to prolonged isolation, deprived of sleep and food, and forced to urinate and defecate on themselves. Interrogators and guards have desecrated the Koran, used religion as a weapon, and formed squads that routinely beat prisoners. Worse still, the FBI has concluded that these tactics were “not effective” and were not “producing intel that was reliable.”
In light of these revelations, concern about Guantanamo has become bipartisan. Senator Mel Martinez (R-FL), a former Cabinet Member in the Bush administration, has urged the president to close down Guantanamo. Senator Chuck Hagel (R-NE), warned that Guantanamo is “going to end in disaster �?? if we don’t wake up and smell the coffee.” And former President Jimmy Carter and Senator Joe Biden (D-DE) have also demanded that the prison close.
At every point in the war on terrorism the Bush administration has attempted to create a new system when well-established and -respected processes already existed. They tossed aside the Geneva Conventions, set up the prison in at Guantanamo, threw out the Army Field Manual on interrogations, and bypassed military courts. In each case those new systems have failed at great cost to the American people.
Returning to the proven and humane techniques developed by the military as a result of decades of experience with interrogation can improve intelligence collection from detainees. We can also turn a public diplomacy disaster into a windfall, demonstrating the value of the rule of law, and the capacity of democracies to handle even the gravest threats, restoring the United States to its rightful place as a symbol of freedom.
The highest priority for the U.S. government is protecting American lives. Any examination of the sum total of the activities at the detention center at Guantanamo Bay leads to the conclusion that it is making that task more difficult.
The Bush administration has presented the issue as a false choice between keeping Guantanamo and releasing the prisoners. There are other options.
The Center for American Progress recommends that the president take the following steps:
Close the prison at Guantanamo Bay and shift detainee operations in the war on terrorism to the U.S. Disciplinary Barracks at Ft. Leavenworth, Kansas. Ft. Leavenworth is the most appropriate location for U.S. military detainee operations. It was established as the U.S. Disciplinary Barracks in 1874 and currently houses more than 1,000 inmates from all the branches of the armed services. Its personnel are the best trained and most experienced in managing a prison population in the U.S. military. Originally, the Bush administration justified bypassing existing U.S. military detention centers in the hope that Guantanamo would be beyond the reach of U.S. courts. But the Supreme Court has asserted jurisdiction. The International Committee of the Red Cross should be granted access to the prisoners at Ft. Leavenworth.
Hold hearings for all detainees under Article 5 of the Geneva Conventions. Article 5 of the Geneva Conventions stipulates that if there is any question about the status of a detainee in wartime he should be treated as a prisoner of war. It also establishes a procedure whereby a “competent tribunal” determines whether a detainee can be prosecuted. President Bush has declared that the Geneva Conventions do not apply to Taliban or al Qaeda detainees. The president may have exceeded his authority by making such a blanket determination. A federal judge has ruled in one case that the president’s decision violated the Geneva Conventions and halted his prosecution. In response to the Supreme Court, the Bush administration established combatant status review tribunals as a substitute for Article 5 hearings. These tribunals have also been challenged by the courts. To provide clarity in the status of the detainees and to forestall any similar rulings from the courts, all detainees should be given Article 5 hearings.
Abandon failed interrogation policies and conduct interrogations according to Army Field Manual 34-52. The use of the Army Field Manual would return interrogations to the proven and humane practices that have been developed through decades of experience by U.S. military personnel. All abuses of detainees have resulted from decisions by the Bush administration to change the rules. But the Bush administration’s policies have not produced valuable information; internal FBI memos from Guantanamo have questioned the effectiveness of the new interrogation tactics. Interrogations of suspected terrorists should be governed by the Army Field Manual 34-52 on Intelligence Interrogation.
Prosecute detainees for violations of the laws of armed conflict under the Uniform Code of Military Justice. Combatants who violate the laws of war should be prosecuted for their actions under the Uniform Code of Military Justice (UCMJ) which allows for the prosecution of “persons serving with or accompanying an armed force in the field.” The Bush administration has asserted that all of the detainees at Guantanamo have violated the laws of armed conflict. If that is true, we have a responsibility to prosecute them.
Use general courts-martial for trials of detainees. General courts-martial could be formed quickly and they have history of fairness and accuracy. They are vastly superior to the special military commissions called for in President Bush’s Military Order of November 13, 2001. Just as with combatant status review tribunals, the Bush administration has attempted to create a new system when a well-established and respected system already existed. And just as with the Article 5 hearings, general courts-martial are preferable and should operate on the principle of maximum practical openness to ensure public confidence in the verdict.
Increase leverage over detainees. In the current system, the only incentive for detainees to cooperate with interrogators is the promise of better conditions of confinement. That confinement, however, is still indefinite. Perversely, the only way for a detainee to be released is to convince the authorities that he is no longer of intelligence value – a tremendous disincentive to provide valuable information. However, the threat of, or actual prosecution can become a strong incentive for detainees to cooperate in order to reduce charges or sentences. Agreements to cooperate with authorities in the future can be formalized in any settlement of charges and sentencing agreements. In fact, prosecutors in the final settlement of the John Walker Lindh case used this very tactic= Lindh is now required to cooperate with the authorities in the future with failure to abide by his commitment bringing specific consequences for his sentence – a far more attractive situation than relying on the whim of a detainee to cooperate to get better food.
Transfer detainees that pose a low security threat and have little intelligence value to their home countries. Some of the detainees at Guantanamo are clearly dangerous individuals who possess important information about other extremists. But it is equally certain that there are significant numbers of detainees who are not security threats and have no worthwhile intelligence after two-plus years of detention. In order to expedite the closure of the prison at Guantanamo, those detainees should be transferred directly to their home countries. In order to avoid the types of abuses that have occurred as a result of the Bush administration’s policy of extraordinary rendition, detainees that are designated for return to their home countries should be publicly identified and the United States should seek public periodic reports on their treatment.
 The tribunal must first determine if the detainee is in fact a combatant or a civilian captured by mistake. If he is determined to be a combatant, the tribunal must then decide whether he is eligible for prisoner of war status and immune from prosecution, or if he is an unprivileged combatant and can be prosecuted. The military held 1,196 such hearings during the Persian Gulf War resulting in 896 detainees released as civilians, 310 detainees granted prisoner of war status, and no cases of unprivileged combatants.
 The Army Field Manual on Intelligence Interrogation establishes the tactics that can be used during interrogations that are consistent with our obligations under the Geneva Conventions and the Convention Against Torture. It is available at: Link
Also see op-ed in the St. Louis Post-Dispatch War on Terrorism: Guantanamo is bad for our military, our safety, our image
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