Albania: Getting out of Gitmo

Matthew Waxman

Matthew Waxman
Currently a professor at Columbia Law School in New York City, Matthew Waxman served as the deputy assistant secretary of defense for detainee affairs in 2004-2005, a position created to advise then-Secretary of Defense Donald Rumsfeld on detainee matters. He left for a job at the State Department after repeated clashes with the administration over prisoner treatment. In 2007, he wrote an op-ed piece for The Washington Post called The Smart Way to Shut Down Gitmo.

In this interview with reporter Alex Poolos, Matthew Waxman shares his thoughts on the initial vision behind Guantanamo, where the Bush administration’s detainee policy went wrong and what it would take for the Obama administration to close the prison. The interview has been edited for clarity.

Alex Poolos: Can you explain the original vision for Guantanamo?

Matthew Waxman: In late 2001, after 9/11 and the invasion of Afghanistan, Guantanamo was developed to deal with two major problems. One of them came from waging war in Afghanistan and overthrowing the Taliban regime: The United States and coalition forces were going to capture large numbers of enemy fighters and needed someplace to hold them. Traditionally, in warfare, militaries hold detainees on the battlefield or sometimes move them behind the front lines for protection. But Afghanistan was not a hospitable environment for conducting detention operations, nor was it clear that over the long term the United States would be able to maintain detention capability in Afghanistan. So you had some basic questions about where the United States and the military coalition were going to hold enemy fighters who had been captured.

The second issue was one of intelligence. In this conflict against a transnational terrorist organization, some of the most important information that the United States needed to obtain in order to wage the conflict successfully and prevent additional terrorist attacks was believed to be inside the heads of captured Al Qaeda and Taliban fighters. The United States wanted to set up a facility that would not only be a place where they could question and interrogate those who had been captured, but could also become a repository for that information -- a place where that information could be analyzed, synthesized and used to support ongoing military operations and to support efforts to protect the United States and coalition partners from additional Al Qaeda attacks.   

What was your initial reaction to Guantanamo?

I had a couple of early thoughts. One was that we really did need a detention capability and an interrogation capability. I don’t think anybody would argue with that part. The controversy arises when you start exploring the questions of where are you going to hold the detainees and, more importantly, according to what rules? I think where the United States policy went off track was in a number of early decisions about detention and interrogation that were designed to provide the president, the executive, with maximum operational flexibility to detain who it wanted to detain, to interrogate how it wanted to interrogate, without adequately weighing the costs of that flexibility -- costs in terms of our legal system, our values and our reputation with coalition partnerships.      

At what point did the red flag go up for you? When did you decide Guantanamo should not exist?

For me, it was a gradual shift. There were initial decisions about the opening of Guantanamo, the legal status of unlawful combatants, the interrogation standards that were promulgated that at any time along the way could have been corrected. But there was a wing within the senior government decision makers that was holding tenaciously to those initial decisions even as the weight of evidence against them was continuing to build.

One of my greatest frustrations inside the government was what I saw as a lack of reflection, introspection and openness to correcting course on the part of some senior leaders. There were times along the way when Guantanamo could have been fixed. There were steps that could have been taken in terms of increasing the transparency of operations. Changing the administrative and legal framework that governed detention there might have made the system more durable in the long term -- durable politically, legally and diplomatically. But now we’ve crossed a point where it simply can’t be rehabilitated. Guantanamo is indelibly linked to images of abuse and the perception that the United States created Guantanamo to keep detainees beyond the full reach of the law.

Did you have any influence in terms of Guantanamo policy when you were in government?

Around the 2002 to 2003 timeframe, I was involved in coordinating some of the U.S. government decision making with regard to transfers out of Guantanamo. By that point, the United States had already reached the conclusion that some of the detainees at Guantanamo should not be there, never should have been brought there, and one of the policy challenges became, having brought them to Guantanamo, how do we send them either home or to a third country.

The Abu Ghraib abuses occurred in late 2003. In about January of 2004, General Sanchez acknowledged that there were some investigations going on, but it wasn’t until April that media coverage of the actual Abu Ghraib photos began to come out. In May of 2004, Secretary Rumsfeld went to visit Guantanamo. After that we were planning on creating an Office of Detainee Affairs. That was the main piece that I was working on: How should the Defense Department reorganize to deal with detainee issues?

Then you have the Supreme Court decisions in Rasul and Hamdi, which created additional impetus for review processes at Guantanamo. That was mostly an issue that was handled by the general counsel’s office at the Defense Department, because there was no Office of Detainee Affairs at the time.

The Office of Detainee Affairs, which I headed, was created in [July] 2004 to serve as a source of policy advice for the secretary of defense and the senior leadership of the Pentagon, and to help coordinate the massive reform of detention operations after Abu Ghraib and other detainee abuses came to light.

In terms of the CSRT [Combatant Status Review Tribunal] and the ARB [Administrative Review Board], that was a set of processes that were pretty much in place by the time I came on as the deputy assistant secretary in August of 2004. So I was certainly aware of and present for a lot of the decision making about some of these reforms, but I didn’t have a position in government that was directly responsible for it until August of 2004.

So when you came in, you had the hope that “We can fix this”? 

I did. And, in retrospect, I don’t know whether that optimism was misplaced. The detainee abuse issue is often associated with Abu Ghraib, but it was much wider than that. You had abuses at Guantanamo, in Afghanistan and elsewhere. These were catastrophic events for U.S. foreign policy in terms of what the United States was trying to do in rebuilding Iraq, in terms of building and sustaining cooperative networks of relationships with coalition partners to combat Al Qaeda terrorism over the long term, and in terms of U.S. credibility and reputation. 

But it also seemed to create an opportunity to rebuild. There was certainly a sense among senior leadership at the Defense Department, who asked me to come in and head the new Office of Detainee Affairs, that there was seriousness about addressing the problem. I wouldn’t have taken the job had I not believed that they were serious and open-minded about radical reform if that’s where the evidence pointed.

But, ultimately, you were not able to reform because there were people in the administration who opposed it?

You know, after over a year and a half in that job, I’m proud of many things that my colleagues were able to accomplish, especially my colleagues in the military: reform of the day-to-day operations of detention, improving facilities, improving standard operating procedures, better training, better oversight, an improved relationship with the ICRC [Red Cross]. All of these things, I think, were extremely important and raised the level of professionalism, care and effectiveness of detention operations.

It was at the strategic policy level that I ran into frustration and ultimately hit a wall. And that wall was at the White House, not within the Defense Department so much. It was the White House’s refusal to reexamine, and perhaps reopen, some of those initial core decisions that were made back in late 2001 and early 2002. 

Should Guantanamo and similar detention facilities be closed?

I’d love to be able to say we could close all of these facilities. Detention is a messy mission; I don’t think it's one that any country wants to have responsibility for. But the reality is, in continuing to wage combat operations in Afghanistan and in Iraq and in continuing to conduct counter-terrorism operations around the world in cooperation with coalition partners, the United States or its allies are going to continue to capture and need to hold and want to question terrorism suspects. If you close Guantanamo, where are you going to hold detainees in the future? And perhaps even more important than that, under what legal framework are you going hold them?

So where do you hold them? And what is the legal framework?

Many individuals who we pick up as suspected terrorists, I think, especially those who we pick up domestically, ought to be handled through our criminal justice system. When it comes to the long-term detention of suspected terrorists, I think criminal justice has the advantage of maximum legitimacy. It's a system that works. It’s been proven. It has public confidence. But there are situations where I think exclusive reliance on criminal justice is unworkable. 

One of those examples is in combat zones. Whether we’re talking about Afghanistan or Iraq, I think many would agree that in those situations the law of war provides an appropriate framework, especially the law of war as governed by the Geneva Conventions. Though, even there, these are not traditional wars among professional forces who identify their soldiers clearly with uniforms and who themselves fight according to the laws of war. In both Iraq and Afghanistan, U.S. coalition forces find themselves engaged in combat with an enemy that deliberately tries to blur the distinction between fighter and civilian, combatant and noncombatant. And, unfortunately, one of the consequences of that type of warfare is some erroneous arrests and even detentions. And so I think, even if there’s agreement that the law of war provides some framework for regulating detention in those settings, the United States and its partners need to work out and continue to refine some set of rules that will govern the review and adjudication of detention decisions when it comes to holding people for the long term. 

Then you’ve got a difficult set of cases of suspected Al Qaeda or other terrorists who are picked up outside the United States but also outside of battlefields. Individuals who are believed to pose a significant danger and who are perhaps captured as a result of continuing, ongoing sensitive intelligence operations. What set of rules ought to govern detention of those individuals? That’s where I think the most debate exists. You have some who say those detentions should be handled through criminal justice. You’ve got some, like the Bush administration, who say those detentions should be handled through the law of war. But perhaps there’s a need to think about some third category, some new set of rules that would govern the detention for these types of cases that don’t fit neatly into either traditional criminal law or traditional law of war.     

Of the 250 people still in Guantanamo, 50 to 100 have already been cleared for release. Why are they still there?

The process of negotiating transfers or releases of detainees to home countries or third countries has proven extremely difficult for a number of reasons.

Some of the detainees at Guantanamo are from countries with such poor human rights records, with a history of torture or persecution, that the United States can’t be confident that in transferring them home, these individuals wouldn’t be subject to torture, even execution. And in those cases the United States has tried to find third countries that are willing to resettle them. The Uighurs are an example of this population.

In other cases, I think the United States has found the diplomatic negotiations with home countries to be frustrating. Sometimes it’s because the home country lacks the capacity to mitigate the continuing threat these individuals may pose.  Sometimes it's because these home countries don’t seem serious about wanting to take back their nationals. For some of these countries, suspected Al Qaeda members are a real political problem for them domestically. And it's a problem they’d rather see the United States saddled with than to take on themselves. 

But the United States has actually had a good deal of success over recent years in transferring back or releasing those who were approved for transfer or release.  This was an original population of around 800 -- now down to 250 -- so several hundred have already been transferred or released.

Why won’t the United States take any detainees?

The United States government has taken the position that we’re unwilling to take into the United States some detainees from Guantanamo because they’re too dangerous. And at the same time we’re trying to go around the world, country to country, and convince some other government to be willing to take them in and resettle them. So it's not surprising that those negotiations have not proven very fruitful.

I think one option that the new administration has to at least consider is the possibility of paroling into the United States some detainees from Guantanamo who have been determined not to be enemy combatants after all. If the new administration is going to go that route, not only to deal with some of these individual cases but to try to break a diplomatic logjam and perhaps open up avenues to solve some other cases at Guantanamo, it's going to be a decision that will have to come from the president himself and will probably involve overruling some of his senior security advisors.

This is not going to be an easy political decision, but I think we need to put all options on the table, especially if we’re serious about closing Guantanamo.

You have said that in order to close Guantanamo there will have to be some painful truth telling.  What did you mean by that?

I think there will be some painful realizations by both sides of the debate. On the one side, I think proponents of Guantanamo are going to need to come to terms with the fact that people have been erroneously detained there and that it has become a powerful symbol of abuse around the world, whether justifiably or not. On the other hand, I think closing Guantanamo is going to highlight the fact that there are many extremely dangerous people at Guantanamo who have committed some of the most horrendous atrocities, people who probably cannot be brought to justice in our criminal justice system.

Maybe with a change of administration and an emphasis from the Obama administration on criminal justice, maybe we’ll find that many of these people actually can be effectively prosecuted. But there’s a substantial risk that many of them can’t be, and that’s what will then force a difficult decision about what to do with that remainder who can’t be prosecuted but who seem so dangerous or who committed such heinous acts against the United States, against the international community, that we don’t feel comfortable simply releasing them. What is the Obama team going to do in those very difficult cases?

Isn’t Guantanamo really just the tip of the iceberg in terms of our detainee detention policy issue?

You can close Guantanamo but that still leaves open the broader long-term question of under what legal basis are the United States and its coalition partners going to continue to capture, hold and interrogate suspected terrorists?  Even if we cleared out the 250 detainees currently at Guantanamo, that doesn’t necessarily answer the question of what we and our coalition partners are going to do with individuals who we continue to capture and detain in the future.

Do you think that the Obama transition team right now is formulating a legal answer to this question you’re posing?

I think the Obama team is going to find that closing Guantanamo, while necessary, is an extremely difficult task. I’m sure they’re currently working through the complex and interlocking legal policies: strategic, diplomatic and intelligence issues. And part of what makes it so tough is that you have this intersection of so many different policy dilemmas all combining, all knotted together in what’s now the manifestation of Guantanamo. But all those issues need to be worked through in parallel.