The 20th anniversary of the opening of the detention facility at Guantanamo Bay on Jan. 11 has produced much thoughtful commentary, including by Sen. Dianne Feinstein here in Lawfare and by former Ambassador for Guantanamo Closure Lee Wolosky in Politico. Having been present at the creation of Guantanamo in January 2002, when I was National Security Council legal adviser, and having spent countless hours over the next seven years in interagency discussions on Guantanamo-related issues, I see this anniversary as an opportunity for me to reflect on the facility’s legacy, to urge the Defense Department to conduct a comprehensive review of the lessons learned from the creation and operation of Guantanamo (if one has not been conducted already), and to reiterate to Biden administration officials that the legal rules applicable to the detention of terror suspects captured outside the United States still need to be clarified.
As longtime Lawfare readers know, I have publicly argued on this site and elsewhere since 2009 that Guantanamo should be closed and the remaining detainees transferred to detention facilities in the United States or elsewhere—and I continue to believe that now. Guantanamo remains a blot on the reputation of the United States as a nation dedicated to the rule of law, and it has undoubtedly served as a recruiting tool for terrorists. Detainees who are still being prosecuted in military commissions or who have not been cleared for release still need to be held in a secure military or civilian prison, but it does not need to be at Guantanamo.
That said, as I have also explained in the past, while the opening of Guantanamo can easily be criticized in hindsight as a “self-inflicted” mess (in Wolosky’s words) or “failed experiment” (as Feinstein writes), it was not as easy as critics seem to think for U.S. officials to decide what to do with the thousands of Taliban and al-Qaeda suspects captured by, or turned over to, U.S. forces in Afghanistan during the invasion of Afghanistan in the fall of 2001.
In any event, 20 years later, it is important for the Biden administration not simply to try to close Guantanamo during Biden’s presidency but also to identify where operational mistakes were made in the early days of Guantanamo so that they are not repeated. Obviously, a principal lesson is that the United States should ensure that all detainees in U.S. custody are treated humanely and not subject to torture or abuse. Congress enacted this requirement as law in the Detainee Treatment Act of 2005, which I strongly supported while serving in the Bush administration. But the Guantanamo experience provides other important lessons as well, including that U.S. personnel must screen terror suspects more carefully to ensure the right people are detained before they are transferred out of their country of capture, that interrogations should be conducted whenever possible in a way that does not jeopardize prosecutions (although this is not always easy), that there are gaps in the legal framework for the detention of terror suspects captured in non-international armed conflicts that still need to be filled, and that the U.S. can operate more effectively when it has the support of its allies than when it operates unilaterally.
Before proceeding further, I should note that I made many of these same recommendations while still serving in government. I began to advocate for the closure of Guantanamo as early as 2004, while I was still serving as National Security Council legal adviser. It had become apparent to me that, even if there was some military necessity to open Guantanamo in 2002, the facility had outlived any initial utility and was causing more harm than good to U.S. national security.
From Guantanamo’s earliest days, I also argued for greater clarity about the legal rules that would apply to detainees to ensure that the U.S. complied with its international obligations and that the U.S. military was detaining actual combatants and terror suspects and not civilians who were “in the wrong place at the wrong time.” I recommended that, before being transferred to Guantanamo, detainees in Afghanistan should have an opportunity to challenge their detention before a “competent tribunal” under Article V of the Third Geneva Convention. This approach was not adopted on the basis that Article V tribunals are required only in cases of “doubt” whether a person qualifies as a prisoner of war; because detainees could not qualify as prisoners of war, there was no reason to have Article V tribunals.
I also argued that, even if the Third and Fourth Geneva Conventions did not apply to the detainees (because al-Qaeda was not a party to the Conventions and the Taliban had not followed the laws and customs of war), the United States should still apply Common Article 3 (which prohibits torture, cruel and degrading treatment, and outrages on personal dignity) and Article 75 of Additional Protocol II (which specifies certain rights of detained persons in non-international armed conflicts and which the United States had previously accepted as reflecting customary international law). However, the Department of Justice did not agree that Common Article 3 applied to the conflict with al-Qaeda and the Taliban (because Common Article 3 applies to conflicts “not of an international character”), until after the Supreme Court’s decision in Hamdan v. Rumsfeld.
I further argued that the International Committee of the Red Cross (ICRC) and the governments of the detainees’ nationalities should have access to them at Guantanamo, that CIA detention facilities should be closed and CIA detainees be transferred to Guantanamo and given access to the ICRC, that all Guantanamo detainees be allowed periodic reviews to allow them to challenge their initial and continued detention, and that military commission procedures be modified to ensure compliance with international law. In order to close Guantanamo, I urged that as many detainees be transferred to the countries of their nationality as possible for detention or prosecution, that at least some of the Uyghurs who had been cleared for release be resettled in the United States (since no other country, other than China, would agree to accept them), and that the remaining detainees be transferred to maximum security prisons in the United States for continued detention and, where possible, prosecution.
Background on the Opening of Guantanamo
It has become conventional wisdom in the human rights community that, from day one, Guantanamo was a misguided effort to subvert the rule of law. In 2004, British Law Lord Johan Steyn famously called Guantanamo a “legal black hole.” President Obama called it a facility that “should never have been opened.” In the view of Guantanamo critics, suspected Taliban and al-Qaeda members detained in Afghanistan in the fall of 2002 should have been held in Afghanistan, interviewed by the FBI and then, if determined to have committed federal crimes, transferred to the United States for prosecution in the federal criminal justice system, or otherwise released.
As I have explained previously, however, in December 2001, U.S. military commanders opposed the continued detention of suspected Taliban and al-Qaeda members in Afghanistan because the temporary detention center at Kandahar airfield where many were being held was neither secure nor adequate as a detention and interrogation facility. The commanders asked policymakers in Washington to find a more permanent facility with more established infrastructure where detainees could be held and questioned. An interagency group considered various detention locations at military bases around the world and in the United States and ultimately concluded that Guantanamo Bay (which had previously been used by the Clinton administration to house more than 10,000 Cuban and Haitian refugees from 1991 to 1995) was the best option because it was a completely secure facility outside Afghanistan that was available immediately, convenient to the United States, relatively low-cost, and had sufficient supporting infrastructure for both the detainees and guard force. It was chosen in part because it was outside the United States and not subject to the jurisdiction of U.S. courts (as the Clinton administration had argued in response to legal challenges by Haitian refugees), but this was only one factor and not the determining factor.
Even in hindsight, it is not entirely clear what would have been a better option. Guantanamo did not work out well, but what would have been a better response to the requests from military commanders in Afghanistan? Should policy officials in Washington have overruled them and insisted that al-Qaeda and Taliban detainees all remain in Afghanistan, even though there were not adequate detention facilities and combat operations were ongoing? Or should all of the detainees have been moved to detention facilities in the United States? Both of these options were considered but rejected at the time. To be clear: These questions are not intended as a defense of Guantanamo but are simply a statement that it is still not clear what the best alternative would have been under the circumstances. In retrospect, it probably would have been better to have detained most of the detainees in Afghanistan for a longer period until more careful screenings could have been conducted before any detainees were transferred out of Afghanistan. But this would have required more infrastructure and the transfer of hundreds (if not thousands) of additional U.S. personnel (including FBI agents) into an area of continuing armed conflict. And it is not clear whether the U.S. should have then released non-Afghan detainees into Afghanistan or transferred them to their home countries (which would have raised human rights concerns and have been very difficult for the U.S. military while combat operations were ongoing).
It is also not clear what should have been done with the vast majority of Guantanamo detainees who could not be charged with federal crimes and prosecuted in U.S. federal courts because federal criminal laws did not apply extraterritorially in 2001 to reach most conduct by non-U.S. nationals in Afghanistan, except for knowing support for terrorist acts. Specifically, 18 U.S.C. § 2339B, which criminalizes material support for designated terrorist organizations, did not apply to actions by non-U.S. nationals in Afghanistan such as training in al-Qaeda training camps; the statute was later amended to cover such conduct. I do not doubt that many detainees should never have been sent to Guantanamo and posed no threat to the United States, but the fact that most detainees have “never been charged” by the U.S. (or any other country) with a crime does not, by itself, prove that the majority of detainees at Guantanamo were entirely innocent of wrongdoing. It may simply mean that U.S. (and other countries’) criminal laws in effect in 2001 did not reach their conduct in Afghanistan. Since 2002, the U.S. and other countries have significantly extended the reach of their counterterrorism laws to reach conduct outside their territories.
The Need for a Defense Department Review Of Guantanamo
Many books, reports and articles have been written about Guantanamo. Most of these have been written by journalists, advocacy groups, and human rights lawyers without access to official records and have focused on the mistreatment of detainees. Many of these publications have made valuable contributions to the public debate, but for the purpose of preparing military personnel and policy officials for future conflicts, they cannot substitute for more objective internal reviews by the U.S. government. The Defense Department conducted several investigations in the early 2000s of specific incidents of detainee abuse, but I am not aware of any comprehensive review (with lessons learned) of the creation and early operation of Guantanamo. If such a review has not been completed, I urge the Defense Department to undertake one now, with a view toward guiding future detainee operations, especially involving terrorist groups.
Clarification of the Legal Rules for Detention of Terror Suspects
While I was at the State Department and since leaving the government, I have argued that the legal framework for the detention of terror suspects outside the United States should be clarified. Shortly after I left the government in 2009, my former State Department colleague Vijay Padmanabhan and I wrote a lengthy article in the American Journal of International Law in which we discussed whether terror suspects captured by the U.S. military in other countries should be treated as combatants in an armed conflict, as criminal suspects, or as both. Human rights groups and many European countries castigated the Bush administration for calling Taliban and al-Qaeda suspects “unlawful combatants” and for failing to treat them either as criminal suspects entitled to lawyers, Miranda warnings and criminal trials, or as prisoners of war or protected civilians under the Third or Fourth Geneva Convention. However, despite careful interagency reviews, the Obama administration did not change course and determine that, as a general matter, all detained Taliban, al-Qaeda and Islamic State members should be considered prisoners of war (with accompanying privileges) or criminal suspects (with accompanying rights). In a few cases, the Obama administration treated newly captured al-Qaeda or Islamic State members initially as combatants under the laws of war and then later transferred them to the U.S. for trial. The Trump administration did nothing to clarify the international legal rules.
The international community has had no more success in clarifying the international rules applicable to members of non-state groups (such as al-Qaeda and the Islamic State) captured in non-international armed conflicts. After insisting for years that there were no “gaps” in coverage in the Geneva Conventions, the ICRC reversed course in 2011 and conceded that gaps do exist in the rules applicable to non-international armed conflicts. The ICRC convened a group of governments to try to reach a consensus on how to fill the gaps but was ultimately unsuccessful, largely due to Russian opposition.
All of this leads me to conclude with this recommendation for Biden administration national security lawyers: The administration should conduct an internal review to determine what international legal rules should apply to non-state terror suspects captured by U.S. military personnel in other countries. The administration should then work with its allies to reach a public consensus on these rules (recall that the 9/11 Commission recommended a “common coalition approach towards the detention and humane treatment of captured terrorists” in its report in 2004). Twenty years after the opening of Guantanamo, this would be a good way to ensure that detained terror suspects no longer fall into a legal black hole.