Seven Questions

Seven Questions: How to Close Gitmo

Closing Guantánamo sounds easy when you have support from, well, pretty much the entire world. But as former Pentagon insider Matthew Waxman tells FP, it’s not as simple as Barack Obama thinks.

As soon as Barack Obama was elected president two weeks ago, the calls started piling in: Close the U.S. prison at Guantnamo Bay. Human rights organizations, pundits, U.S. allies, and much of Congress support the idea, which now looks certain to top the incoming administrations agenda. "I have said repeatedly that I intend to close Guantnamo, and I will follow through on that," Obama told Steve Kroft Nov. 16 on 60 Minutes. "I have said repeatedly that America doesnt torture. And Im gonna make sure that we dont torture. Those are part and parcel of an effort to regain Americas moral stature in the world."

But shutting down Guantnamo will be no easy task. Of the prison's 255 remaining detainees, 23 are still facing various charges. Relocating any or all of the prisoners to U.S. soil could prove contentious and legally complicated. To sort out the issues, Foreign Policy's Elizabeth Dickinson spoke with Matthew Waxman, former deputy assistant secretary of defense for detainee affairs. Waxman, the first ever to hold the position, was appointed after the Abu Ghraib incident in 2004 to advise then Secretary of Defense Donald Rumsfeld. Just over a year later, Waxman left for the State Department, having fought unsuccessfully to extend the protections of the Geneva Conventions to every terrorism detainee.

Foreign Policy: Many in the United States and in the world are hoping that President-elect Barack Obama will close the Guantnamo Bay prison as one of his first moves in office -- but it looks like this wont be so easy. What are some of the legal hang-ups that could postpone closure?

Matthew Waxman: President Obama may announce quickly his intention to close Guantnamo Bay, but I wouldnt expect it to close overnight. The operational obstacles include some difficult diplomacy with home governments in an effort to transfer or release many detainees under an adequate set of humane treatment as well as security assurances. And there are logistical issues of where to detain [the prisoners] and how to secure them. Of the remaining [prisoners in Guantnamo] whom we intend to continue to detain, presumably [they would be held] in the United States.

It's another question to figure out on what legal basis to continue holding detainees. There are basically three choices: We can prosecute them in U.S. courts; continue to hold them as enemy combatants; or seek new legal authority from Congress for preventive detention. Each of those has its own subchoices. For example, if you prosecute [a detainee], do you use federal criminal courts, do you use courts-martial, do you use military commissions, or do you go to Congress to create some new courts? I dont expect Obama's administration to make any firm decisions on [these issues] until it has had its own opportunity to review the cases and make its own determinations about which can be prosecuted.

FP: Peter Bergen and Ken Ballen, in an article for ForeignPolicy.com, argued that Most of [the detainees at Guantnamo] have never posed any real risk to America, for the simple reason that the vast majority of them were never enemy combatants in the first place. What's your reaction to that statement?

MW: I have no doubt that some individuals were brought to Guantnamo who never should have been, but I also believe that some detainees were released under the belief that they didn't pose a threat, and that [conclusion] turned out to be wrong. Certainly you have some extremely dangerous individuals, including al Qaeda masterminds like Khalid Sheikh Mohammed, but you also have some lower-level threats and even some individuals who dont pose a serious threat to the United States and who ought to be returned.

FP: If I were a detainee in Guantnamo today, what would my legal status be? What rights would I have?

MW: The detainees are held as enemy combatants in an ongoing armed conflict. According to the U.S. government, they can be detained until the end of hostilities with al Qaeda. Since the Supreme Court's decision in the Boumediene et al. v. Bush case, its now established that the detainees at Guantnamo have a constitutional right to habeas corpus -- in other words, a right to challenge in federal courts the legal and factual basis of their detention.

Many detainees have access to lawyers at this point. There are hundreds of habeas corpus cases that are ongoing -- there is very active litigation that is going on now challenging individual detentions. If [detainees] were simply brought into the United States, most of those cases would simply continue forward. If they were prosecuted or held under other legal arrangements, most likely, there would be grounds for other habeas corpus cases, but these would need to be refiled to challenge the detention.

FP: If some of these detainees are tried in U.S. courts -- people such as Khalid Sheikh Mohammed -- how much of their testimony from interrogations using techniques such as waterboarding would be allowed in court?

MW: One of the issues likely to arise in many Guantnamo prosecutions will be allegations of mistreatment and even torture by U.S. personnel. And not only will prosecutions potentially expose some past U.S. conduct, but that conduct might even spoil the chances for a conviction in some cases.

FP: If Guantnamo is closed, what options would you recommend to President-elect Obama for structuring the capture and detainment of future terrorism suspects?

MW: An important point to make is this: The problem of Guantnamo goes beyond the 250 or so individuals currently detained there. The United States will continue to capture, detain, and need to interrogate suspected terrorists long into the future. And the bigger question than whether to hold them at Guantnamo or not is one of legal authority. On what legal basis and according to what standards will the United States conduct detentions? That is a huge issue facing the new president. One of the most important lessons of the Bush years is that any answer to that question ought to be made in close consultation with Congress and with U.S. allies.

FP: How would you describe the legacy of the Bush administration in detention? What did they get right and wrong? Legally speaking, did they end up setting back their own effort?

MW: A strategic error of the Bush administration in the immediate aftermath of Sept. 11 was its overemphasis on operational flexibility and underemphasis on legitimacy. It took legal interpretations in order to maximize its freedom to detain and interrogate without adequately recognizing the dangers to coalition cooperation, U.S. reputation abroad, and legal principles that the United States stands for and promotes.

FP: To paraphrase your old boss, Donald Rumsfeld, are U.S. detention policies currently producing more terrorists than they are removing from the world?

MW: It's impossible to know. On the one hand, U.S. detention policies play an important role in neutralizing threats and gaining critical intelligence. However, overbroad detention or perceptions of abuse have also no doubt played into the hands of our enemies and undermined support for U.S. operations among key audiences. Looking forward, the critical task of the new administration is to recalibrate detention policy in a way that mitigates all of those dangers.

Brennan Linsley/Pool/Getty Images

Seven Questions

Seven Questions: Richard Perle's Advice for Barack Obama

The “Prince of Darkness” weighs in on Vladimir Putin, Bob Gates, and how the new U.S. president can avoid the Bush administration’s biggest blunders.

In the days following the election of Barack Obama, there has been no shortage of advice for the president-elect on how he should shape his foreign policy.

For more words of wisdom, Foreign Policy's David Kenner spoke with Richard Perleonce an insider and later an outspoken critic of the Bush administration. As chairman of a key Defense Department advisory board from 2001 to 2003, Perle emerged as one of the most ardent proponents of the Iraq war. But in a much publicized 2006 interview in Vanity Fair, Perle admitted that he would no longer have supported the invasion and left little doubt that the blame for the huge mistakes ultimately lay with the president himself. Perle spoke with FP about the Bush legacy and how the next administration can avoid the same errors.

Foreign Policy: What gets covered in the campaign isn't always what the president has to deal with when in office. What are some conflicts that could be central to President-elect Obama's foreign-policy legacy?

Richard Perle: North Korea is far from resolved in a stable way. Iran of course has to be dealt with. The obvious objectives are halting their nuclear weapons, their search for nuclear weapons, their program to acquire nuclear weapons, and their involvement in terrorism.

Syria remains very much an unresolved issue. The Syrians are up to no good in Lebanon, up to no good in the region generally, and they make territory available to terrorists. This administration doesnt have a coherent policy with respect to Syria, but the next one will need one.

Russia. Again, I dont think that this administration has a coherent Russia policy, but the next administration is certainly going to need one. The Russians are sounding very aggressive these days -- provocatively, unnecessarily aggressive.

There's the large question about how we deal with terrorist threats. For all the deficiencies of the Bush administration -- and there have been many -- there hasn't been another large-scale attack in the United States since 9/11. If there should be one, that is an existential threat to Obamas second term for sure.

FP: What lessons from your time in government would you like to pass on to the Obama team during this transition period?

RP: Everything is people. The right people in the right positions produce sound and effective policies. And the wrong people can create enormous difficulty. It's often hard to know -- if you put a senator in a cabinet post, someone who has never managed anything -- is he going to be able to effectively manage a huge bureaucratic institution? Same goes for academics. Teaching in a university is about as different as managing policy in a bureaucracy as anything I can think of. I think driving a tractor probably prepares you as well as a Ph.D. for life in a bureaucracy.

FP: What advice would you give Obama in dealing with a resurgent Russia?

RP: The first thing we need is a strategy, which I think we don't now have, for assisting in the development of pipelines that will diminish the dependence of our allies on Russian gas in particular, but oil and gas. It looks to me like [Russian Prime Minister Vladimir] Putin's strategy is to try to assure that no oil or gas moves without [the Russians] approval. The closer they get to achieving that, the more aggressive they will become. Chances are that Obama will improve on the Bush policy[of which] there is none. It was just: Hope for the best. Say nice things about Putin and hope for the best.

FP: Some have argued that the United States should stop backing Georgia after its conflict with Russia because it could be damaging to U.S.-Russian relations. What is your reaction to that argument?

RP: That would be a mistake of historic proportions. That would be appeasement of the worst kind. Georgia is now democratic, certainly by regional standards, and it's better than that in fact. Theyve done some foolish things, but they have been invaded and beaten up pretty badly. If we now abandon them on the grounds that we should be kissing Putin's behind, that will be very, very damaging. And it will not improve the [U.S.] relationship with Russia.

FP: The deputy commander of Iran's Islamic Revolutionary Guard Corps recently implied that Iran should not negotiate with the United States. What does this tell us about the hopes that Obamas election could bring a rapprochement with Iran?

RP: There's a lot of maneuvering going on. I wouldnt take it at face value, but if Obama believes he can talk the Iranians out of their nuclear weapons program, and talk them out of their terrorist alliances, he's wrong. You've got to put it in some context. What is it you want to negotiate? And what do you think can be achieved through a negotiating process? It is an illusion to believe that negotiations will work. Obama will figure that out sooner or later.

Now, Obama has got something going for him. The price of oil has tumbled. The Iranian economy is in terrible shape. It's an unpopular regime, by almost any measure. And if he could get a really tough sanctions policy, he might actually be able to do something.

FP: In September 2003, you said that a year from now, I'll be very surprised if there is not some grand square in Baghdad that is named after President Bush and that except for a very small number of people close to a vicious regime, the people of Iraq have been liberated and they understand that they've been liberated. Does the rosy picture at all represent the country we see today?

RP: I never expected that we would get into that occupation. I thought we'd be out of there. Iraqi sovereignty would have been restored. That didn't happen.

Is it rosy today? Do I think most Iraqis have been liberated? Absolutely. I think the Kurds have been liberated, for sure. The Shiites, who were horribly suppressed, have been liberated. And I think many Sunnis, too. That was a place where you got arrested in the middle of the night, and nobody ever heard from you again.

Obviously if it deteriorates into chaos or a new Saddam emerges and people are no better off than they were before, then there won't be [a square named after President Bush]. But I think they've got a decent chance of establishing a representative government that isn't going to look like our system, or some other democratic systems, but if it's reasonably representative and humane, if the economy starts to develop -- yes. I think [Iraqis] will look back and say, we paid a terrible price, but its worth it.

FP: Obama reportedly remains open to keeping Robert Gates on as secretary of defense. Would that be a good decision?

RP: My guess, when the rumors first started before the election, was that it was an interesting way to say to people who may have bought the line that [Obama] was a dangerous radical that in fact he was pretty moderate in outlook. But I wouldn't [keep Gates on]. Hes got better choices, and I think you want someone with more imagination. You're at the beginning of what is likely to be eight years and you probably want to accomplish something. Gates is a decent man. He's very workmanlike, but there's no inspiration and no imagination.

Alex Wong/Getty Images for Meet the Press