The Prisoners at Guantanamo Bay

On October 5th, the Watson Institute for International Studies broadcast a day-long series of discussion panels entitled “Guantanamo: How Should We Respond?” The various speakers at the event provided a fairly direct, if perhaps rather shortsighted, answer to this question: we should either shut the place down immediately, or else bring it entirely within the framework of United States law. And we should be very, very ashamed of ourselves.

To call the event extremely biased would be something of an understatement. The speakers at the event, wishing to galvanize support for change, made a concerted effort to foster discontent with Guantanamo – that is, with the prison itself, the treatment of those held there, and the administration in charge. However, for a set of problems that are so critically important, a fair and objective treatment is necessary. On controversial issues such as holding prisoners, judging their guilt, and extracting information, it must be understood that the United States has a variety of compelling interests with regards to suspected and known terrorists. While there have certainly been mistakes in the administration’s Guantanamo policy, very few of the event’s speakers elaborated beyond tear-jerk stories. Such anger-mongering and appeals to emotion obscure the many reasons that Guantanamo functions the way that it does, and, given a need for the prison to remain functional, cannot lead to constructive change.

Improperly held (innocent) prisoners:
The first major concern that I would like to address are the prisoners at Guantanamo that simply should not be there. The exact number of these is uncertain, but the fact is that they exist, and the reason is simple: bad policy. Following the collapse of the Taliban, military officials dispersed thousands of leaflets over Afghanistan and Pakistan. These informed their readers that the United States would pay thousands of dollars for information leading to the arrest of Taliban and Al-Qaida militants. Basic economics predict what happened next: hundreds of Afghans and Pakistanis were rounded up for the bounty, often by members of enemy tribes. As one might expect, many of these individuals were not the Islamic fundamentalists that their captors claimed. However, the United States has been reluctant to release these prisoners, as there is no way to know the truth about them.

The solution to this problem is quite straightforward. Having studied the Taliban’s structure, we know that many of their “soldiers” were actually forced conscripts – victims of circumstance. Many of our “weak” cases (that is, those who were most likely captured only for the bounty, and against whom we have only circumstantial evidence) are such conscripts. Others are suspected of having, at worst, only loose ties to the enemy. These individuals have no credible intelligence to speak of, and, indeed, have great incentive to fabricate intelligence to earn better treatment. Releasing these prisoners would eliminate many of the strongest arguments against Guantanamo, and would create good will around the world. Of course, some of the released prisoners would take up arms and return to the battlefield. Frankly, however, such militants would more easily be sentenced by our soldiers than in our courtrooms.

The legal rights of detainees:
In the process of determining which detainees should be held as prisoners at Guantanamo, there is a second major concern: what legal rights should these individuals enjoy? How can we reconcile our need to restrain suspected terrorists, while granting due process and other elements of a fair trial? . . . Do these unlawful combatants even deserve a fair trial?

The Military Commission Act (MCA), which was passed several weeks ago after a heated debate between President Bush and Senator McCain (see “Winners and Losers,” Brown Spectator V:II), made several important and necessary changes to the rights of Guantanamo detainees. During the trial process, classified evidence will now be presented to the defendant directly, rather than indirectly through his or her lawyer. However, the source of thisevidence, as well as the means by which it was gathered, will remain anonymous. This secrecy is extremely important, since the sources often include monitoring devices or agents that are still deployed. When such evidence was given to defendants during similar trials in the 1990s, it had a habit of making its way into enemy hands, compromising many active government operations. Additionally, defendants have now been granted a limited right to appeal the military’s right to hold them, as well as the military court’s verdict, to United States federal courts.

Thus, while the MCA does not grant full legal rights to suspected terrorists, it does allow a relatively fair balance. I believe, however, that a further step is necessary: we should place a minor burden of proof on the prosecution, requiring it to establish that it has a reason to keep information undisclosed on each occasion that it should choose to do so, and forcing it to limit the nondisclosure to that specific information which it cannot disclose. While this burden should be modest, it would function as an important check on the government, ensuring that there is a legitimate need to withhold information whenever this is done. The trials would thus be as fair as sensibly possible, given the dangerous and volatile nature of handling these prisoners.

But why give the terrorists any rights at all? The answer is simple: cost and benefit. The cost of denying a fair trial, even to unlawful combatants, is that we sacrifice our morals and our integrity – we show that we do not believe that all men are created equal. At Guantanamo, the fact is that we have made mistakes, and we will continue to make them; we are not infallible. Establishing the minor burdens that I suggest here will cause us to lose only the weakest of our cases, against the most insignificant of the detainees (and, it must be recognized, against those who are innocent). In exchange, we ensure that the public and the world know that only the guilty hang. Whether or not we should be, the United States is held to a higher standard. Acknowledging this and acting accordingly, we can easily save face. And the enemy will look that much worse every time they sever the head of a captured journalist or soldier. This is basic diplomacy, and it would serve us well.

Torture, and other methods of extracting information:
Finally, I would like to address the question of gathering intelligence from those many captured individuals who do have ties to the enemy. Under current law, physical torture is banned in all United States territories, including Guantanamo. However, as several speakers at the teach-in event noted, there are concerns that the United States is flying certain prisoners to Third-World countries where there are no torture restrictions. Save for “ticking bomb” cases (i.e. we have captured bin Laden, and we know he has planted a nuclear device, and we need to know where it is now), I would look upon this practice with extreme skepticism. But claims of “outsourcing torture” were flatly denied by Secretary Rice, and, conspiracy theories aside, there exists no credible evidence that such a practice is taking place. Therefore, unless new information is found, discussion of the matter serves little constructive purpose.

Of much greater relevance are concerns about the methods of extracting information that the CIA is allowed to use at Guantanamo. Critics of the interrogation program point to psychological methods, such as sleep deprivation and disorientation, which the CIA has honed over many decades for exactly this purpose. Some claim that these methods are tantamount to torture, and, therefore, that we have a duty to abandon them.

Such thinking is naïve. With the unfortunate exception of the innocent detainees discussed earlier, the men and women imprisoned at Guantanamo are among the most hardened and wicked of the terrorists that have been captured. A training manual known as the “May 2000 Manchester Document” (see www.thesmokinggun. com/archive/binmurder1.html) was recovered from a captured bin Laden follower in England, which describes in detail a number of tactics used by many of the prisoners at Guantanamo. If captured, militants are instructed to use hunger-strikes and suicide as weapons against their captors; to claim harassment and physical torture to their judges and lawyers; to strategically withhold information from interrogators; and, as described earlier, to collect intelligence from documents and testimony used as evidence against them.

Faced with such an enemy, we have few effective options. We cannot directly question them and expect answers to be forthcoming, whether or not we ask nicely. And collecting seventy virgins per suspect would require too many tax dollars, even without considering the cost of therapy for the poor ex-virgins. The most effective method currently employed by the CIA is known as “waterboarding” – a practice of simulated drowning, which causes no permanent damage and is noteworthy for breaking the notoriously thick-skinned Khalid Sheik Mohammed. But the text of the Military Commission Act indicates that this practice will probably be stopped, pending interpretation, since it approaches torture.

However, the administration’s legal scholars do not believe that psychological interrogation methods offend Common Article 3 of Geneva – and indeed, if they do, then most of the world is guilty. The CIA developed and refined these methods during the Cold War, as a means to compel information from prisoners without causing them permanent harm. Certainly such methods may traumatize, but consider the balance of interests: on the one hand, the information gathered from captive terrorists has and will continue to save lives. On the other, the harm to those who are interrogated is absolutely minimized. And additionally, Al Qaida militants and their ilk have demonstrated a profound disregard for human suffering, as well as a willingness to use any means necessary to mislead their captors. I believe, therefore, that the CIA would be in dereliction of its duties if it did not use psychological methods to extract valuable information from known terrorist operatives.

Conclusion
The fact that valuable information is available for the taking, especially in light of the reformed tribunal system at Guantanamo, is a compelling reason to press onward and not close the facility, as some would have us do. However, the administration absolutely must admit to having made bad policy decisions, and must perform a thorough review of its prisoners, releasing those who are clearly guilty of no crime. And there is little reason that the process of trying detainees should not be made more transparent, to alleviate public and international concern about the legitimacy of the process. After all, as the saying goes, sunlight is the best disinfectant. And, truth be told, the world might do well to hear some of the horror stories that we have as evidence against the imprisoned militants.