Guantanamo Bay: undermining the global war on terror

Joint Force Quarterly, Oct, 2005 by Gerard P. Fogarty

The basic proposition here is that somebody who comes into the United States of America illegally, who conducts a terrorist operation killing thousands of innocent Americans, men, women, and children, is not a lawful combatant. They don't deserve to be treated as a prisoner of war. They don't deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process ... they will have a fair trial, but it'll be under the procedures of a military tribunal.... We think [it] guarantees that we'll have the kind of treatment of these individuals that we believe they deserve.

--Vice President Dick Cheney, November 14, 2001 (1)

Prosecution of the war on terror has resulted in the detention of some 650 citizens from over 40 countries at military facilities on the U.S. naval base at Guantanamo Bay, Cuba. Although the Bush administration has held firm to the position outlined by Vice President Cheney in 2001, the legality of this position continues to elicit worldwide commentary and, most recently, the interest of the Supreme Court. While the administration's position has a number of prominent defenders, much international expert opinion, some sharply critical, has weighed in on the other side. Justice Richard Goldstone, for example, stated in a BBC interview in late 2003 that "a future American President will have to apologize for Guantanamo." (2) The question of how to deal with the detainees in the ongoing war on terror is, however, an extremely difficult issue that has generated deep rifts even within the administration. Following 9/11, the administration invoked extraordinary wartime powers to establish a new system of military justice that would match a very different type of conflict. As the administration sought to apply those powers, it became mired in problems it is still struggling to solve.

This essay assesses the competing positions on the legal status of the detainees. First, it outlines why Guantanamo was chosen as a location for detainee operations. It then outlines the position on the prisoner of war (POW) status of the detainees and competing views on the due process protections that should be provided those charged with war crimes. It then discusses the wider effects the administration's policies in Guantanamo are having on the war on terror and concludes with recommendations for an alternative approach that would regain the initiative for the administration. It seeks to recapture much-needed international legitimacy, creating greater diplomatic space within which opportunities to harness broader international support and involvement in the war on terror can be pursued.

Why Detain at Guantanamo Bay?

The United States and its coalition partners remain at war against al Qaeda and its affiliates in Afghanistan and around the world. Since Osama bin Laden declared war on the United States in 1996, al Qaeda and its partners have launched repeated attacks that have killed thousands of innocent Americans and hundreds of civilians from other countries. The administration states that the law of armed conflict governs what it terms "the war between the United States and al Qaeda" and therefore establishes the rules for detention of enemy combatants. (3) Congress has not formally declared war; instead, the President has authorized the detention, treatment, and trial of noncitizens under a military order derived from the constitutional authority vested in him as the President and Commander in Chief. To protect the Nation, and for the effective conduct of military operations to prevent further terrorist attacks, the administration states that it is necessary to detain certain individuals to prevent them from continuing to fight and, subsequently, to try those who violate the laws of war.

A report prepared by defense lawyers for Secretary of Defense Donald Rumsfeld in 2003 appears to substantiate the selection of Guantanamo as the preferred detention location. The report cited the long-held view of the legal "advantages" Guantanamo offers the administration because it falls outside the jurisdiction of U.S. courts. (4) The advantages lie principally in removing the rights of detainees to question the legality of their detention in U.S. courts and to facilitate permissive interrogation techniques that would otherwise be constrained by statute. The report was the outcome of a working group of executive branch lawyers appointed by the General Counsel of the Department of Defense to address, inter alia, the legal constraints on the interrogation of detained persons. (5)

Some critics have linked the permissiveness of the legal interpretation for interrogation at Guantanamo that underpinned Rumsfeld's approval of 24 interrogation techniques, including "significantly increasing the fear level in a detainee," to abuses at Abu Ghraib in 2003. (6) The administration has denied such a link despite the Department of Defense (DOD) investigation into Abu Ghraib, which revealed that some of the techniques authorized for "unlawful combatants" in Guantanamo Bay were used in Iraq. (7) Seymour Hersh's Chain of Command: The Road from 9/11 to Abu Ghraib, which attributes the abuse in that prison to interrogation policies in Guantanamo, continues to fuel the debate. Hersh's theory resonates with an increasingly critical domestic and international audience and lends credence to the claims of torture by the International Committee of the Red Cross (8) and four former British detainees who have sued Secretary Rumsfeld and ten others in the military chain of command for mistreatment at Guantanamo. (9)