Transfers, Releases & Resettlements

A "Jaw-Dropping U-Turn" Story that Isn't

By Benjamin Wittes
Wednesday, August 7, 2013, 8:20 AM

I saw this breathless story in the Daily Mail by reporter David Rose a few hours after seeing William Lietzau, the deputy assistant secretary of defense for detainee matters, at a social event:

The Pentagon official in charge of Guantanamo Bay has admitted that if he had his time over, he would have argued that the notorious detention camp should never have been built.

William Lietzau, America’s Deputy Assistant Defence Secretary for Detainee Affairs, told The Mail on Sunday in an exclusive interview that Guantanamo’s detainees should have been legally designated  as prisoners of war and held  in Afghanistan, or if charged with crimes, taken to prisons  in America.

Mr Lietzau – who, after three and a half years in his job, last week announced he will be stepping down to take a private sector job in September –  added that the best way for President Obama to close Guantanamo would be to announce that the ‘war’ with  Al Qaeda is over.

Under international law, this would end any justification for continuing to hold prisoners who had not been charged  with crimes.

Lietzau’s words will be seen  as explosive, because alone of senior officials who serve the Obama administration in this field now, he played a key role in creating Guantanamo under George W. Bush.

As a senior military lawyer from early  2002 to mid-2003, he designed the Guantanamo ‘military commissions’ – special tribunals set up to try terrorist suspects.

These have proved a dismal failure. Their rules have repeatedly changed, and more than a decade after five men accused of plotting 9/11 were captured, their case is bogged down in pre-trial hearings which have no end in sight.

The Daily Mail describes, in its headline no less, that "Prison camp's jailer-in-chief makes jaw-dropping U-turn and says it should never have been built." But notice what is not in any of the first few paragraphs of this story: quotations.

And the story sounded a bit off from the Bill Lietzau I have known over the past few years. So I wrote him a note, asking him to what extent the article represented him and whether he wanted to clarify anything in it. He responded:

I stand by each of the quotes attributed to me in the article, and if one were to read them without the breathless imputations . . . , I believe there is nothing new here.  In fact, I have repeatedly made these arguments throughout my tenure as DASD (and before---including back into the last Administration). My overarching point during the interview was simply that if we had called the detainees prisoners of war (regardless of whether we accorded them all the rights and privileges of GC III, i.e., with the traditional definition predating the Geneva Conventions), we might have avoided the confusion as to their legal status that endures today.  The geography point was nothing but that GTMO created a red herring.  Holding them in Afghanistan or, if necessary, in the United States would have made less likely the theories that the legality of detention was based on some new legal theory or dependent on a loophole in federal court jurisdiction.  I have consistently argued these points, both in the early years of GTMO and now.

I would have enjoyed reading an article that used my quotes to deal circumspectly with the very complex issues facing the United States with respect to detention in non-international armed conflict. How to end the war and return to using law enforcement to combat terrorism is the quintessential issue with which the United States must grapple before we can cease law of war detention and, perhaps concomitantly, close GTMO.

Here are all the actual quotations from Lietzau in the article:

  • "Mr Lietzau said that if he were advising the Bush administration now, ‘I would argue that detainees should be kept in Afghanistan, or, if moving them is necessary, then into the United States. If I could change one thing in Gitmo’s past, I would have called them prisoners of war from the beginning.’"
  • "Mr Lietzau admitted: ‘There were people who were treated badly, and this is not something we are proud of.’ However, he insisted such abuse had stopped, saying that some detainees had become adept at making false allegations. ‘They know that  we look into every credible allegation, and that absorbs an enormous amount of manpower and effort .  .  . With Gitmo, the amount of deceptive smoke overwhelms the tiny amount of fire from years ago.’"
  • "He added if any more detainees beyond the six currently facing military commissions were to be charged, it might well be better to do this in ordinary federal courts. ‘They have many advantages, such as the number of offences which can be prosecuted in them.’"
  • "Just like you can’t kill your way out of this war, you’re not going to transfer your way out of Gitmo. The really hard question is, 'How do you end this war?' Once you do, we legally have to let them all go, other than those we prosecute."
  • "The struggle with terrorism is not going to end. But we do have to end the legally cognizable armed conflict with Al Qaeda, a specific transnational group. Arguably, if the war aim of diminishing Al Qaeda’s ability to mount a certain level of attack has been achieved, we could declare an end to hostilities and return to dealing with the threat as a law enforcement matter."

Lietzau is right. None of this is stuff he hasn't said before. And President Obama has said most of it too. The ideas that Guantanamo was a mistake, that people were treated badly there, that federal courts have advantages over other military commissions, and that detention will end with the end of the conflict are all staples statements by senior government officials; many of these themes show up in the President Obama's May 23 speech at NDU.

The story isn't "explosive" or "jaw-dropping" or much or really anything new.