Matt Olsen: “Politics” Kept Guantanamo Open, “Not National Security”

February 21, 2017
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by Jason M. Breslow Digital Editor

Matthew Olsen was appointed in 2009 to lead the Guantanamo Review Task Force, a commission established by President Barack Obama to review the case against every detainee at the U.S. detention center in Cuba. Under Olsen, the task force examined 240 detainees to determine whether to prosecute, release or hold them indefinitely.

“No one should think that any of these decisions are entirely free of risk. That’s just not the way the world works,” Olsen says in the interview below. “But the question, on the other hand, is do we really want to continue to keep people forever in a prison in Cuba?”

Olsen, who later served as director of the National Counterterrorism Center, says Obama was right to want to close Guantanamo, but politics, “not national security,” got in the way.

This is the transcript of an interview conducted by Arun Rath on Dec. 7, 2016. It has been edited for clarity and length.

Back in early 2009, you were given a pretty big task in terms of evaluating Guantanamo detainees. Can you talk about what you arrived to, what was on your plate at that point?

So in early 2009, during the transition from the Bush Administration to the Obama Administration, I was at the time in the National Security Division of the Department of Justice. During that transition, I was the acting head of the division … So, Attorney General Holder comes into office, and on the first day of the president’s administration, he signs the executive order that calls for the closing of the detention facility at Guantanamo. And it also called for a review of all the detainees at Guantanamo. So this is a big deal, this first day in office, this issuance by President Obama, the executive order. And the president gives that responsibility to coordinate that review to the Attorney General and to the Department of Justice. So given that I had been in the National Security Division, and that I was in a position to help out, the Attorney General asked me to lead the review of the then 240 detainees who were detained at Guantanamo.

… And could you lay out briefly the categories that you were assigning to the various detainees and why?

… The first category was transfer or release. And the executive order said that if possible, consistent with national security and the U.S. foreign policy interests, the first option should be to transfer or release the detainee. If that wasn’t possible, then the next option was to prosecute, and preferably to prosecute that person in federal court, if that was a feasible option. And if neither of those options were available, neither transfer or prosecution, then consider other options, including continued detention under the laws of war. So that was really the third and last option. …

And once you started to dig into to these files, the information about these detainees, what did you find?

Well, the very first challenge we faced was the idea that there really weren’t files on the detainees. This wasn’t a situation where the information had been neatly collated and preserved in one location. In fact, what had happened is, you know, a number of different agencies had collected information about those individuals detained at Guantanamo. So you had the CIA and NSA, intelligence agencies that had a lot of information. Of course, you had the Defense Department, which had been typically involved in apprehending these individuals. They had information. You had information down at Guantanamo about these individuals, given that most of them had been there for six years or seven years. And then the Justice Department had information, State Department had information. So each agency had their own information that they collected for their own operational reasons. So our first challenge — and it was a challenge — was getting all this information and feeling like we had our arms around all of it, you know? On each of the 240 detainees. Some of it not particularly sensitive, but some of it extremely sensitive. Extremely sensitive intelligence collection that the United States had obtained, often with the help of other countries. So some of it was very highly classified. So the first challenge was getting all that information in one place.

And with all this information coming from different places, was there conflict in the accounts? Like the Justice Department would have one version, the CIA another?

The information just would reflect the different operational imperatives of each of those agencies. So, you know, the CIA would have some information, perhaps from a foreign intelligence source. The Defense Department had information about the actual getting this person in custody in Afghanistan, for example, where they were operating. It was really raw intelligence too. This was not like conclusions by each of these agencies. What we were collecting was the actual primary source information. And I guess if there was a surprise, it was that none of this information had all been brought to bear in the prior decision making that had been made about these individuals. In other words, no one had brought all this information together in one place. So again, that was a big challenge. But we thought that was critically important before we even started to dig into the files to say which category do we think each detainee belongs in.

How many people kind of fit into each of these categories as you did this evaluation. 

There were about 240 detainees when we started in 2009. Out of that number, we concluded that 126 detainees would be approved for transfer. And that means transfer to another country, with security measures, the conclusion being that they could be transferred consistent with our national security interests, and that security measures would be put in place. That was 126. So yeah, over half of the detainees approved for transfer. Ultimately, 36 of the detainees were referred for prosecution to the Department of Justice to see if they could be prosecuted, and then 48 detainees out of the 240 were deemed — it was deemed necessary to continue to hold them under the laws of war, meaning they couldn’t be transferred and they couldn’t be prosecuted. And then finally, there was a special category of 30 detainees who were from Yemen who we put in this category we called “conditional detention,” meaning they could be transferred, but only once the situation in Yemen had stabilized. Because if you recall, Yemen was an extremely dangerous and insecure place in 2009-2010 when we were conducting this review.

And this group of Yemenis, can you talk about why they were in Guantanamo in the first place?

I think about 100 or so of the 240 detainees were from Yemen. So by far the biggest number in terms of nationality were from Yemen. If I could generalize, and it’s hard to generalize, but if I could generalize about the Yemen detainee population, they typically fell into a category that we sort of considered low-level fighter. They had traveled from Yemen to Afghanistan, they had joined the fight there with the Taliban, typically trained at a camp, perhaps received some degree, but often minimal training, they were not typically individuals who were involved in Al Qaeda external operations. In other words, they had not been, you know, vetted and approved and trained to conduct terrorist operations, but rather were sent to the front lines to fight alongside with the Taliban.

When we moved in and invaded Afghanistan right after 9/11, they were typically apprehended fleeing from Tora Bora when the bombs started to fall when we bombed that area, and were picked up there. So, a difficult population because yes, they had gone to Afghanistan to fight, and yes, Yemen was a very difficult country to return one of these individuals to, but at the same time, these were not sort of core Al Qaeda terrorist operatives. They were really what we considered to be low-level fighters. And that’s why they presented a particular challenge to policy makers trying to figure out what to do with them.

“There were a number — not an insignificant number — of cases where some of the conclusions that had been previously reached were not well-founded.”

Going back to these intelligence assessments that you were compiling from different sources, once you pulled that together, what was the general quality of the assessments of these men. 

Really varied. In some cases, some of these individuals had gone through a fair amount of vetting, and a lot of intelligence analysis had been done. And they were very solid, the information we had, we felt very comfortable with the conclusions that had been reached previously by the Department of Defense in continuing to detain the individuals. Those were solid conclusions. But there were a number — not an insignificant number — of cases where some of the conclusions that had been previously reached were not well-founded.

… Now, we weren’t looking at this information [to determine] whether it could be admissible in a court room. We were just looking at basic question of reliability. Was the information corroborated? Did it make sense? Were there more than one source of information — before we felt comfortable making a recommendation, for example, to continue to hold somebody without a trial indefinitely. A very consequential decision. We wanted to really dig in and make sure that the information we had was as solid as possible.

… How would you grade the quality of those initial assessments that you went through?

Well, I think much of it is exactly what you’d expect, given the circumstances, right. These were done within just the Department of Defense, sometimes done under circumstances where they didn’t have a lot of time … I think they were all done in good faith, but I just think we found some of them were lacking in terms of rigor and completeness.

You were being asked to provide clarity about these individuals, who they were, and what to do with them. How much clarity were you able to achieve?

That’s a great question because we could provide a degree of rigor and, you know, just thoroughness to our review of the files. But in terms of predictive clarity, the decisions that we were supporting were inherently risky, right? You could never remove the risk from the idea that you’re going to transfer somebody who’s now incarcerated to being released and free in another country. Whether that country’s their home country in Yemen, or another third country, perhaps in Europe or in South America … And that just means that policy makers — in this case, the National Security Council principals, the Cabinet members who were ultimately making the decisions in most cases — had no 100 percent guarantee that somebody would not pose a risk. And that’s really hard.

I want to talk about this detainee that we’ve spent some time with. I understand you probably can’t talk about specifics, but this individual that we’re following, he was transferred to Serbia in July. He’s a Yemeni, his file initially had that he was a general in Al Qaeda. From what we’ve seen form the PRB [Periodic Review Board], from the review board, they dialed that assessment back substantially — although there’s still some question about his degree of involvement with extremism. Is that a fairly typical kind of trajectory?

Obviously, I don’t know this specific case, but that is not uncommon that some of the earlier assessments — it sounds like in this case — might have inflated the role that the individual played compared to later assessments. Again, the benefit of several years of looking at these individuals gives us more insight about the role they played, perhaps even new sources of information, whether that’s coming from other services or even other detainees. As you start to really dig into the stories the detainees are telling about each other, you know, if you really do that with care, you can start to see who’s exaggerating and who’s telling the truth. …

When you were doing this job, when you’re going through these individual cases and moving up through the chain of command, the people that need to sign off on this, how much detail, say like when you’re meeting with senior members of the administration, are you getting into with each of these individual cases?

It was quite remarkable, because in many of the cases — in fact, all of the cases where the detainee was recommended for continued detention, in other words indefinite detention — we presented those cases to the principals. So we’re taking Secretary of State, Secretary of Defense, Director of National Intelligence, Attorney General. So the Cabinet-level members of the National Security Council. And we were sitting around a table, presenting the very, very specific details of each individual detainee to this group of senior-level policy makers … In fact, a really incredible part of this review was that every decision that was made, all 240 detainees, were made unanimously. So all of the agencies that participated in the review agreed on the ultimate disposition of each detainee. Which we thought was really important in terms of the integrity of the process. That we really pushed for a consensus where we could. And in fact, at the end of the day, all of those decisions were unanimous.

Evaluating this now at the end of President Obama’s second term, can you explain why it’s taken so long, and why there may even be a situation where some of these people who’ve been cleared for release may not be out of Guantanamo before the president leaves office?

… In some cases, there are individuals who are still there who were approved for transfer because, in particular in Yemen, the situation in Yemen remains quite dangerous. It’s maybe less dangerous now than it was in 2009, but there is still substantial risk in sending somebody who was associated with Al Qaeda back to Yemen. And that risk can be mitigated to a certain degree. It’s unclear to what extent, though. So that’s still an issue, security measures in places like Yemen.

But the fundamental reason why we still have individuals at Guantanamo Bay who were approved for transfer is pure politics. I think the politics around Guantanamo were such that it was very easy for Congress in particular to set up roadblocks for the president and create sort of a sense, that was unjustified, of fear of these individuals.

For example, moving them to a prison in the United States, where they could clearly be held in a secure manner, just like many, many, dangerous prisoners are. But Congress prohibited that, and Congress put prohibitions and roadblocks in the way of transferring some of these individuals. That was politics. That’s not national security. And so that’s the main reason that it’s still open.

… What are the factors that go into the calculation of how to release an individual? Because it sounds like there are issues involving risk, but there are other factors in that decision, as well, that play into it.

… The factors are pretty common sense. You know, what do we know about the detainee’s background? Association with Al Qaeda, involvement in any terrorist activities. What we know about the person’s activities while at Guantanamo. What’s been their behavior while incarcerated? All of the things that would be relevant to making a risk determination.

But then in addition to that, we looked at what are the potential countries that they could go back to? Could they go back to their home country or would they need to be transferred to a third country? If you recall, the United States has a policy not to transfer individuals to countries where they may be tortured or persecuted. So in some cases, returning them to their home country was not an option, so we had to look to other countries to take them. So we were looking at where they could go, and what those countries, those destination countries, could do from a security standpoint. What measures could they put in place? How effective were their security and law enforcement services to monitor these individuals?

So a range of factors. And then the ultimate kind of question was, could this person be transferred, consistent with national security, such that any threat they posed would be sufficiently mitigated? We understood that you couldn’t eliminate all threat. The question was, could any threat they posed be sufficiently mitigated?

“I think the politics around Guantanamo were such that it was very easy for Congress in particular to set up roadblocks for the president and create sort of a sense, that was unjustified, of fear of these individuals.”

… There’s this term, and I know a lot of people aren’t fond of the term, “forever prisoner.” Individuals who, the determination is that they cannot be released at this time. Could you explain just how that works with the law of war? How law of war detentions work, essentially, and how long somebody can be held legally?

Yeah, so just from a legal perspective, when Congress passed the Authorization for the Use of Military Force [AUMF], the Supreme Court has held that that includes the authority for the United States to hold someone as a detainee under that authority. And that’s consistent with domestic law. It’s also consistent, generally speaking, with international law, that during the course of an armed conflict, a country may hold prisoners. And so, consistent with U.S. and international law, it is lawful to hold someone indefinitely without a trial. And so that’s the legal background. I think we understood, and the administration certainly emphasized to us, that holding somebody indefinitely, especially in a war involving Al Qaeda that didn’t have an end particularly in sight, was an extremely consequential decision.

So holding somebody at Guantanamo, without presenting them for trial because we couldn’t prosecute them, because we didn’t have evidence that we could present in a courtroom, was a really consequential decision. And so, as a review process, we made the decision with the National Security Council and with the Cabinet members, that all of those decisions would be made by the actual principals, by the Cabinet members themselves. …

… This individual I was telling you about that we’ve visited with in Serbia, he was earlier classified as one of those forever prisoners, indefinite detainees, and then that assessment changed. Is that something that people should be concerned about? How much of a handle do we have on how dangerous these people might be, or not dangerous they might be?

It’s a great question. I think people should be feel somewhat comforted by the idea that we have a process that continues to look at these individuals. I think that’s really important. You know, none of these decisions should be set in stone. Circumstances change. The individual himself may have demonstrated some degree of, you know, contrition, or something that changed during their time of confinement. But also, the opportunity to transfer them to a country that wasn’t available before may have opened up, where there are security measures in place. So circumstances change, and that’s the right answer, that we continue to look at these individuals and see if there’s an opportunity to move them to another country.

… The other thing I would add to this decision to transfer people who previously had been held is that, you know, no one should think that any of these decisions are entirely free of risk. That’s just not the way the world works. So there’s always some amount of risk when you transfer somebody. But the question, on the other hand, is do we really want to continue to keep people forever in a prison in Cuba? Is it really sustainable to keep a small number, whether it’s 50 or 60 or fewer people in this detention facility? Now, 10 years from now, 30 years from now when these men are in their 70s and 80s? So it always seems to me that it’s right to continue to look at these individuals to see if at some point in time, we can transfer them in a way that’s consistent with our national security interests.

Some critics of the transfer process say that it’s pressure from the administration wanting to close the prison in Guantanamo which is compelling people to be released who shouldn’t be released. If it were the case that these were indefinite detentions, or these people were being detained in the U.S., would there be as much urgency in terms of processing them and getting them out?

It’s an interesting question. First of all, I did see my job, running this task force in 2009, early 2010, as, you know, sort of making sure that political considerations did not enter into our judgments and our recommendations. There clearly were political swirls going on, whether in Congress or in the White House, right, about what’s the right thing to do with Guantanamo. We wanted to make sure that our review was completely isolated form the politics around this. …

The question of whether or not, if these individuals were housed in the United States, there would be less pressure, I think there would still be an important imperative to continue to review them for whether or not they can be released or prosecuted. …

There’s going to be a new presidential administration coming in. Is there anything to stop them from completely taking this out, putting in their new process? I mean, how much momentum does this process have going into the next administration? How likely is it to continue?

I think the process of reviewing the detainees at Guantanamo and relying on the judgments and analysis that we did back in 2009, I think that’s pretty well-established. I would not expect there to be any, change in those processes. Remember, that’s now been going on since 2009, for seven years, going on 8 years … Certainly there will be other questions about the future of Guantanamo that the next administration will have to deal with.

If a Trump administration or a subsequent administration decides to house new war on terror detainees in Guantanamo, to put new detainees there, based on your experience, is there any advice that you would have for how to handle that differently the next time around?

… There are real reasons, strong reasons, compelling reasons, not to put new detainees at Guantanamo. One, we’ve shown quite effectively that these individuals can be tried in federal court, picked up in places like Libya or other places in the Middle East, brought back to the United States, and tried here in federal courts in the United States. That’s a tried-and-true approach, and I think that’s been proven, you know, over and over again. The other thing that I’ve seen directly is that Guantanamo remains a source of friction with allies that we count on, European allies in particular who have shown an unwillingness to cooperate with the United States on prosecuting terrorists because of the existence of Guantanamo. So that’s another reason not to keep it open. And just a third reason, which remains a viable and important reason, is Guantanamo is still a propaganda tool. It’s not the only propaganda tool that the terrorists use, but it is an important one, and we continue to see even ISIS put people in orange jumpsuits, evocative of Guantanamo. And so to the extent we can eliminate that as a source of propaganda for terrorists, all the better. So I think it would be a mistake to put people back. …

In the evaluations of intelligence about these individuals, how much were you looking at information that was derived from torture?

There were a handful of cases, as you know, where the detainees had been subject to the enhanced interrogation program. We felt it was appropriate to consider the information, although we often would look at it with an eye toward, could we corroborate it? Did it make sense? …

“We understood that you couldn’t eliminate all threat. The question was, could any threat they posed be sufficiently mitigated?”

Can you explain briefly, indefinite detention? How it is the government can lawfully hold without charging them, with no fixed date on when they out?

There’s really no controversy around the idea that a country at war can hold somebody, under international law. And the United States had domestic authority as well, under the Authorization for Use of Military Force. So the question from a legal perspective is straightforward. Certainly it raises significant policy concerns, about holding somebody indefinitely, especially in a war that has no clear ending, because it’s against a terrorist organization and a non-state actor that continues to operate in the shadows. And that’s why the policy around indefinite detention is understandably quite controversial. …

With this legal justification for indefinite detention, is this a tool that’s in the president’s toolbox going forward? Post-President Obama, any president could use it as they see fit to detain people indefinitely?

Well, it certainly is a tool in the toolbox for the executive. It’s not without constraint. It needs to be consistent with domestic law, which defines the enemy as Al Qaeda and the Taliban and associated forces. So it’s constrained, legally by that definition of who falls within that category. And it’s subject to other legal and policy constraints. So while it’s an open-ended detention, it’s not without important constraints in both domestic law as well as international and humanitarian law.

Although it’s been the case, what we’ve seen in the courts, there’s mostly deference to the executive’s authority in doing that, right?

Well, actually no. Because if you look at the individuals, once the detainees were able to, as the Supreme Court ruled, challenge their detention in federal court, they all had the option to do so. They had the option to, and most all of them did go through the habeas process. In other words, challenged the lawfulness of their detention. And in a substantial number of cases, the courts ruled, judges here in Washington, D.C. ruled that these individuals were not lawfully detained. And in fact, a number of those individuals were people that we looked at and ultimately released because they were deemed not lawfully detained under the laws of war and under the domestic authority the Congress had granted the executive for continuing to hold individuals. So there’s real teeth in that option of the courts reviewing the executive branch determination to hold somebody.

Going back to the discussions for clearing releases. When an individual is going through this review process, so that is taken up to, like, the Cabinet level? The particulars would be discussed by people like you and people reporting directly to the president?

In the initial decision, back in 2009 and 2010, those initial decisions, yes, those were made by individuals who reported to the president. Cabinet-level decision makers, policy makers, representing all the agencies who were part of this review. Anyone who was approved for indefinite or continued detention was approved unanimously by those Cabinet-level officials. Now, the current process, under the Periodic Review Boards, is slightly different. There are individuals designated with that responsibility.

Once they’re out, in a third country, whose responsibility are they then? Are they solely the responsibility of that country? Or does the U.S. still play any role?

It varies, case by case. In my experience, the U.S. continues to play an important role in working with the host country, the country to which these detainees have been transferred, both from a law enforcement and intelligence perspective, diplomatic perspective. Often the security measure in place would include a degree of cooperation with the United States, in terms of sharing information about the status of the detainee and understanding any risk that that person poses. It definitely varies by country and by detainee. But in my experience, there was a strong cooperative relationship between those countries where the detainees were going and the United States in all of those different dimensions — law enforcement, intelligence and diplomatic.

Does the U.S. have any responsibility? Does it owe anything to these individuals who were detained in Guantanamo and are now being released out into the world? .. There’s some people being prosecuted for war crimes and for terrorism in Guantanamo. There are others who have been released where we’ve seen the intelligence assessments have changed over time, that they may not have been involved in terrorism, as we initially thought. If it were the case that they were held in a case of mistaken identity, do individuals like that have any right to some kind of compensation or some way for the U.S. government to make some kind of restitution for that?

You know, I think fundamentally, what the United States owes to these detainees is that we follow the rule of law, and that we take seriously, extremely seriously, the circumstances under which they were detained and the information upon which that detention is based. And that we have a process in place to continue to look at them and review them and ensure that their continued detention is absolutely essential for our national security, and that it complies with the rule of law — both domestic and international law. And I think that’s, in my experience, what President Obama did in 2009, and has done during the course of the administration. And I think that’s, going forward, what the United States owes to these individuals, and it’s really what we owe, the government owes to all of us as citizens, right? That we continue to hold up our values and comply with the rule of law in how we hold and detain suspected terrorists going forward.

But this review process, it’s not part of the U.S. legal system. This is something which is kind of taking place in its own separate world, in the executive branch. How is that consistent with rule of law if it’s not in the court system? And how is that ultimately consistent with, you know, American values?

I think it is. First of all, these individuals, detainees, are part of the court system in the sense that they can challenge, and they have challenged, their detention under the rules that apply to detaining individuals under the authority given to the executive branch by Congress. So they’ve challenged their detention in the courts. But beyond the judicial system, it’s also the case that the executive branch is part of applying the rule of law, and making sure that what the executive branch does is consistent with the rule of law.

… So it’s not the case that the only place that the rule of law occurs is before a judge. And I think we’ve seen, the White House, the administration, the departments and agencies responsible for these decisions, uphold the rule of law within the executive branch in how we’ve approached these determinations over the last several years. And that would be the way in which I would think, going forward, we would continue to look at these individuals. Applying both domestic and international law to their continued detention.

And if these determinations are made using, information, evidence which is classified, which can’t be released, if there’s a kind of opacity to it, is there anything more that you can say other than, trust us?

I think that’s a real challenge. You know, much of the information is classified, and it must remain classified because it comes from very sensitive sources, and it might reveal sensitive methods of intelligence collection. That’s the nature of intelligence … That sort of comes with the territory.

I certainly understand the challenge that presents. I think what President Obama has done was to release a whole body of information about the framework, the rules, the laws, the policies that apply to the detention of terrorists. And so what we’ve seen over the last several years is a commitment to transparency that I think is unprecedented in not just the United States, but I would suggest by any country, in releasing information about how our national security and counterterrorism decisions are made. But at the end of the day, there still will be some core amount of information that can’t be released because it’s too sensitive.

… One of the phrases used to describe the detainees in Guantanamo, in the early days, and it’s stuck since then, has been “the worst of the worst.” You spent some time intensely looking at who these individuals are. How would you describe them?

You know, it’s really one of the unfortunate aspects of Guantanamo, that there are these myths. And one of the myths is that everyone at Guantanamo is “the worst of the worst.” Just patently not true. They run the gamut. Certainly some of the individuals — Khalid Sheikh Mohammed, other 9/11 co-conspirators — clearly they qualify [as] worst of the worst, extremely dangerous. But on the other end, many of them are extremely low-level individuals, not involved in terrorist activities. Some of them not lawfully detained, as it turns out, once judges had an opportunity to review their cases. So you know, at the other end of the spectrum, they clearly, many of them, in fact, the majority of them that we looked at of the 240, certainly would not qualify as the worst of the worst.

… The other myth, on the other end, is that all of them were innocent, herders, who were just rounded up and [had] nothing to do with Al Qaeda. That also is a myth. And as it often turns out, you know, the truth is somewhere in the middle, and is more nuanced, and requires a more rigorous look at each individual on their own terms. …

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