A “pro-Convention” position reinforces [the US Government]’s key themes in the war on terrorism.
The essence of the Convention is the distinction between soldiers and civilians (i.e., between combatants and non-combatants).
Terrorists are reprehensible precisely because they negate that distinction by purposefully targeting civilians.
The Convention aims to protect civilians by requiring soldiers to wear uniforms and otherwise distinguish themselves from civilians.
The Convention creates an incentive system for good behavior. The key incentive is that soldiers who play by the rules get POW status if they [are] captured.
The US can apply the Convention to the Taliban (and al-Qaida) detainees as a matter of policy without having to give them POW status because none of the detainees remaining in US hands played by the rules.29
The DoD memo concluded by summing up what we thought the U.S. position should be:
Humane treatment for all detainees.
US is applying the Convention. All detainees are getting the treatment they are (or would be) entitled to under the Convention.
US supports the Convention and promotes universal respect for it.
The Convention does not squarely address circumstances that we are confronting in this new global war against terrorism, but while we work through the legal questions, we are upholding the principle of universal applicability of the Convention.30
Though the Justice Department offered its well-considered legal view, we noted that the Taliban was effectively the government of a country that was a party to Geneva. Our position was that it was “[h]ighly dangerous if countries make application of [the] Convention hinge on subjective or moral judgments as to the quality or decency of the enemy’s government.”31 Powell’s position, as outlined in his January 25 memorandum, was in line with ours.32 The discussion was the sort of thing that I thought would have done the drafters of the Geneva Conventions proud. Justice Department officials were doing their jobs: defining the President’s flexibility within the law. And the policy makers in the Department of Defense were doing theirs: making clear that while it is mandatory to stay within the law, not everything that is lawful is necessarily the best policy.
President Bush was apparently persuaded by Myers and Feith’s arguments, and on February 7, he set forth his conclusions in a memo.33 While he didn’t challenge the Justice Department’s legal reasoning, he seemed to feel that it risked putting the administration in a position where it could be criticized for not respecting the Geneva Conventions. Ironically, of course, the Bush administration came under exactly that unfair criticism, notwithstanding the fact that the President had explicitly decided that his administration would take a pro–Geneva Conventions stance.
In a conventional war, detention issues would have fallen under the responsibility of the military commanders in each theater of operations. But CENTCOM commander Franks was reluctant to have hundreds of those captured remain in the theater as his command’s responsibility. There were no existing satisfactory Afghan prisons that he could use, nor were there easily discernible front lines behind which detainees could be safely held. The rebellion at the Qala-i-Jangi prison demonstrated the challenge vividly. Additionally, Franks and I agreed that frontline American troops would be better used for counterterrorism missions than as prison guards or interrogators.
I thought it preferable to have Afghanistan take on the responsibility of holding detainees captured on its soil. Then, with our assistance, Afghans could begin to seek the swift transfer of non-Afghans to their countries of origin for detention there.34 If a limited number of detainees were going to have to be in U.S. custody, I preferred to hand over major detention responsibilities to another department or agency. Suffice it to say that there were no departments of the government eagerly coming forward to assist. Another possibility I considered was to create an entirely new entity with the explicit purpose of administering detention policy and operations, running tribunals and trial proceedings, negotiating with other countries around the world for the further detention of individuals, and coordinating competing interagency interests. There was no enthusiasm for this approach either, and DoD was selected.
President Bush’s November 2001 military order provided for the detention of enemy combatants “at an appropriate location designated by the Secretary of Defense outside or within the United States.” To comply with the order, a number of locations were discussed, including some in the United States. The crumbling federal prison on Alcatraz Island or the maximum security Disciplinary Barracks at Fort Leavenworth, Kansas, were considered. So were other possibilities—such as a ship that could be permanently stationed in the Arabian Sea and island military bases in the Pacific and Indian oceans.35 Attention then turned to the U.S. military facility near the southeastern tip of Cuba.
Christopher Columbus sailed into the narrow stretch of bay named Guantánamo on his second trip to the New World in 1494. In the wake of the Spanish-American War, President Theodore Roosevelt signed a treaty with the Cuban government establishing the U.S. Navy base on Cuban soil, and leasing the land for two thousand dollars annually. I traveled to the sleepy base twice in the 1950s, as a midshipman aboard U.S. Navy battleships, and later as a naval aviator for training. With palm trees and beaches, the U.S. Naval Station at Guantánamo Bay, or “Gitmo” as it was called, was a low-key facility used to refuel and resupply Navy ships and aircraft patrolling the Caribbean.
When asked by journalists why Gitmo was chosen to house detainees, I described it as “the least worst place.”36 Grammar aside, the phrase conveyed my uneasy feelings about the entire detainee dilemma. We had made the best possible choice among a number of unattractive options. It was chosen because it was far from the ever-shifting battlefield in Afghanistan, where U.S. troops had to guard against the possibility of enemy assaults and attempted escapes. It was controlled entirely by the United States military, even though it was not then subject to American legal jurisdiction. It had some existing infrastructure, including a naval hospital. Its use would not further complicate diplomatic relations with a host nation, since our relations with Fidel Castro’s Cuba were poor at best.
Additionally, Guantánamo had a history of use as a detention facility dating back to the Carter years, when it was first used to house Cuban and Haitian refugees. The Carter administration and its successors through the Clinton administration did not afford the refugees the same legal rights as Americans because they were neither on U.S. soil nor U.S. citizens. In 2001, Bush administration lawyers determined that foreign nationals held at Gitmo would not have automatic access to U.S. courts, which had also been the case for the refugees that had been held there by several previous administrations of both political parties.
On January 11, 2002, al-Qaida and Taliban detainees began arriving at Guantánamo Bay. Initially, they were housed at Camp X-Ray, an existing facility built during the Clinton administration for illegal immigrants. We intended this arrangement to be temporary, pending construction of appropriate, modern facilities, which were completed within a few months. Soon After the first detainees arrived, we suffered a costly self-inflicted wound. Intending to demonstrate openness to the press, and to showcase the humane treatment of the detainees, the Pentagon public affairs office released photographs taken while the detainees were still in temporary quarters at Camp X-Ray. The photographs showed prisoners wearing orange jumpsuits behind chain-link and barbed-wire fences. Some wore blacked-out goggles and had their hands tied behind their backs during transfers, so that they could not attack their guards. The photographs, with primitive facilities and conditions, became enduring images of Guantánamo. They were repeatedly referred to by critics of the Bush administration long After the permanent, state-of-the-art facilities were completed. It was another example of how little was understood about war in the information age.
Contrary to the notions suggested by those early photos, the detainees at Gitmo had warm showers, toiletries,
water, clean clothes, blankets, culturally appropriate meals, prayer mats, Korans, modern medical attention equal to that provided to our troops, exercise, writing materials, and regular visits by the International Committee of the Red Cross.
In early 2002, the U.S. military’s Southern Command (SOUTHCOM) sent up, through the Pentagon’s Joint Staff, a construction proposal for a permanent detention facility at Guantánamo Bay. The proposal, presented to me through General Pete Pace, the vice chairman of the Joint Chiefs and a former SOUTHCOM commander, envisioned a costly and seemingly permanent two-thousand-bed facility. Given the battlefield pressures to move detainees out of the areas of operations, military commanders wanted to move as many as possible as quickly as possible to Guantánamo Bay.
Government organizations tend to use whatever resources are available to them. I knew that if I approved such a large facility, our forces would almost certainly ship enough prisoners to fill it. I wanted to preempt that tendency. I told General Pace that I thought we would be better off with a considerably smaller facility, and that I wanted to generate downward pressure on the number of inmates to be sent to Gitmo. I said I wanted transfers of detainees to Guantánamo Bay to be kept to a minimum—to only individuals of high interest for interrogation who posed a threat to our nation’s security. Pace came back with revised proposals several times. On each go-round, the size of the proposed expansion of the facility became smaller and more specialized, to handle only the toughest and most dangerous cases. It was not an easy process for General Pace, who had to balance the pressures from CENTCOM’s battlefield commanders with pressures from a secretary of defense who was dead set against making it easier for them to avoid tough choices by simply sending all questionable cases off to Gitmo. Pace was getting squeezed, but typically he handled the situation with good humor. At one point, when he was preparing to present yet another version of the proposal, he showed up for our meeting wearing a flak jacket, a helmet, and a grin. Finally I agreed to build a facility that could house several hundred inmates, not the two thousand originally proposed. The facility was designed so it could be expanded, but only if I became convinced in the future that there were sound reasons to house additional terrorists there.
I instructed our commanders to develop a selection process to winnow down the number of detainees to be held for long periods. I wanted captured enemies to first be sorted out in the field according to predetermined intelligence and safety criteria rather than just being sent to Guantánamo. For all but a few of the most important and dangerous detainees, I wanted them to stay in the country and have the new Afghan government begin to exercise responsibility for them.37 I urged Powell and the State Department to encourage Afghans (and later Iraqis) to take on the responsibility for holding lower-level detainees captured in their country.38
I also called for an ongoing evaluation of the detainees. I knew we ran the risk of mistakenly releasing some people who might attack us in the future, just as is the case in our civilian prison system, but I saw this as a risk we had to take. Otherwise we risked alienating populations whose assistance we needed and do an injustice to individuals who were not actually involved in terrorism.
As the number of detainees at Gitmo rose, I pushed and prodded senior Pentagon officials on almost a weekly basis as to when and how detainees could be transferred to their home countries. “You have to get your arms around this detainee thing,” I wrote in one snowflake.39 “We need to get rid of more detainees,” I told Doug Feith five days later. “How do we do it?”40 And three months later I urgently wrote again, “I do want some people out of Guantánamo sent to their own countries. I really mean it. I want that done. I would like a report every two days on what is happening on this.”41
I repeatedly urged the State Department to try to persuade the detainees’ countries of origin to take responsibility for captured combatants under sensible conditions as soon as detainees began arriving in 2002.42 In the first several years the Guantánamo Bay detention facility was open, State Department officials had little success in pressing foreign governments on the matter. Most foreign governments did not want to take suspected terrorists any more than we wanted to hold them.* Despite my efforts to keep numbers down, Gitmo’s detainee population ballooned beyond 650 in its first two years.†
One of my biggest disappointments as secretary of defense was my inability to marshal the resources within our government to help persuade America and the world of the truth about Gitmo: The most heavily scrutinized detention facility in the world was also one of the most professionally run in history. Irresponsible charges leveled by human rights groups, by editorial pages, and, most shamefully, by members of the U.S. Congress who had every opportunity and reason to know better, unfairly tarnished Guantánamo’s reputation—and the reputations of our country and of the men and women of the American military who served at the facility. Even worse, the inaccurate allegations were exploited by terrorists to improve their fundraising and recruitment. This, in fact, was a component of the enemy’s propaganda strategy. In one al-Qaida training manual, the so-called Manchester document, the first lesson if captured was to “insist on proving that torture was inflicted on them by State Security before the judge.”43 Its second lesson was to “complain of mistreatment while in prison.”44 The hope, of course, was that some gullible people in the West would believe their repeated fabrications. Because of the stigma that clung to Gitmo, the terrorists found it an easy case to make.
In May 2005, Newsweek magazine wrote that U.S. guards at Gitmo had flushed a Koran down a toilet “in an attempt to rattle suspects” for interrogation purposes.45 Unnamed sources, Newsweek said, had verified the allegation. The story set off a firestorm of protest in a number of Muslim cities. Commentators denounced the troops serving at Gitmo. Demonstrations and riots erupted around the world. In Afghanistan, seventeen people died in the rioting.
After a thorough examination by the Defense Department, the individual believed to have made the original allegation recanted. We then asked Newsweek to withdraw its story, but its editor would only express “regret that we got any part of our story wrong, and [we] extend our sympathies to victims of the violence and to the U.S. soldiers caught in its midst.”46 A number of those to whom Newsweek extended its sympathies were already dead. And the reputations of those military personnel serving at Gitmo had been besmirched again, as was the reputation of our country—to the benefit of the terrorists.
It was a grim irony. We deliberately made the facility transparent, which made the repeated inaccuracies all the more irresponsible. Almost from its inception, the Defense Department arranged for regular and well-attended visits by members of Congress, representatives of news organizations, opinion leaders, and other visitors and observers from around the world. In the five years After detainees began to arrive, some 145 members of Congress, Democrats and Republicans, took advantage of the Department’s open invitation to visit Gitmo. There were representatives from across the executive branch—the State Department, the CIA, the FBI, the Department of Justice, and a whole host of DoD agencies and organizations—stationed there. Over time, more than one thousand U.S. and international journalists visited. We arranged for high-level European parliamentary groups to visit. Hundreds of lawyers were given access to the detainees there, as was the International Committee of the Red Cross on a regular basis.
Nearly every observer who visited Gitmo recognized that it was safer, better, cleaner, and more professionally run than most American federal, state, and local prisons, and certainly better than most foreign prisons. A senior Belgian government official said After visiting Gitmo, “At the level of the detention facilities, it is a model prison, where people are better treated than in Belgian prisons.”47 More money was spent on religiously sensitive meals for detainees at Gitmo than on meals for the American troops stationed there. The average weight gain per detainee was twenty pounds. Detainees were given Korans in their native languages. Five times each day the Muslim call to prayer
sounded across the facility, and numerous arrows indicated the direction of Mecca. Detainees had access to a basketball and volleyball court, ping-pong tables, and board games. Some detainees chose to take classes in Pashtu, Arabic, and English. There were even movie nights, featuring popular Hollywood fare (which I suppose could raise a host of troubling questions). They watched sports events like the World Cup. The library had thirty-five hundred volumes available in thirteen languages (Harry Potter was the most requested). They received medical, dental, psychiatric, and optometric care—health care equal to that provided to our troops.48
Critics nonetheless continued to denounce Guantánamo as a “law-free zone” and “legal black hole.”49 Amnesty International called it “the gulag of our times.”50 The number-two Democratic leader in the U.S. Senate, Dick Durbin, compared American behavior at Guantánamo Bay to that of “Nazis, Soviets in their gulags, or some mad regime—Pol Pot or others—that had no concern for human beings.”51 It would have been a disgraceful comment from someone who hadn’t known better, but coming from a senior congressional leader speaking on the Senate floor, it was particularly damaging and inexcusable.
As the issue of detainees became increasingly politicized, even some senior administration officials, including ones who had been involved in the discussions that led to the administration’s detention and interrogation policies and the establishment of Gitmo, were less than supportive.52 They were anonymously cited in news reports “on background” concurring with President Bush’s opponents that Guantánamo was a stain on America’s reputation and should be closed.53 In late 2003, I wrote a memo to Secretary of State Powell, Attorney General Ashcroft, and National Security Adviser Rice saying:
[T]here continues to be static concerning the handling of the detainees at Guantánamo. I suggest that: If an agency is dissatisfied with the Administration’s policy, they propose a change to the policy to the NSC [or if] an agency doesn’t like a particular result from the interagency process (for example, a decision on a specific detainee), they elevate their concern to the NSC and propose an alternative.54
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