Guantanamo's War

In the past decade, the word “Guantanamo” has come to represent far more than the Cuban bay that lent its name to one of America’s oldest military bases more than a century ago; it has joined our 21st century lexicon as a term emblematic of abuse, overreach, and disregard for the rule of law.  In rare agreement, two U.S. Presidents from opposite ends of the political spectrum have declared the benefit of ceasing operations at its detention facility, but both have earnestly tried and failed to close Guantanamo. Failure has certainly not been for lack of trying.  Rather, it is the natural consequence of a misdiagnosis.  We have directed our energies toward removing the symptom—Guantanamo; instead of addressing the underlying cause—the ongoing armed conflict against al Qaeda.  The most vexing problem of the day is not how to close Guantanamo, per se, but how to harness Guantanamo’s turbulence to move us toward a more thoughtful analysis of the armed conflict itself and how we responsibly end the war of which Guantanamo is a byproduct. Thus far, attempts to close the facility have not only failed; they have arguably undermined their own ends by releasing belligerents back to the fight and prolonging the conflict.  Ironically, we would be closer to shuttering Guantanamo today had we not tried so hard to close it.  Besides eliciting a legislative reaction inhibiting detainee transfers, the myopic focus has prevented additional captures, thus denying warfighters the intelligence needed to bring the conflict to an acceptable and timely conclusion.  And most importantly, it has endangered the very human rights closure is intended to protect. Efforts to ameliorate the perception of executive overreach ironically heighten the more existential threat of a President who retains wartime authorities in perpetuity.  The extraordinary power to detain a man without trial should certainly be temporary, but no more so than the authority to kill him.  Indefinite detention is the least of our worries.  Instead, we should fear indefinite war.  Win the war, and Guantanamo will close itself.

Guantanamo and our Values

Chasing shadows

Abraham Lincoln once said, “Character is like a tree and reputation, like its shadow.  The shadow is what we think of it; the tree is the real thing.”  Before deciding how much our attention should be focused on Guantanamo, it would behoove us to determine whether we are dealing with a tree or its shadow. The claim that Guantanamo reflects badly on our character is predicated on a combination of allegations including both mistreatment and the very existence of detention without trial. President Obama addressed these concerns in his first days in office when he famously issued several orders establishing two mandates: close Guantanamo within a year, and develop more principled detention policies. The latter mandate indeed addresses an issue of character, but it is also largely accomplished.  Few recent military activities have been more thoroughly investigated than detention. Misconduct has occurred, and it has been punished. But in no way has it risen to the level asserted in the false allegations of popular mythology. Today, guards thanklessly provide safe, humane, respectful care to detainees who, given a chance, would kill them. Any values-based decision to close Guantanamo cannot be predicated on exaggerated historical claims of abuse. That would permit terrorists to succeed in their most specious deception. We owe our service members more than that. That a small number of the more than 100,000 persons captured in the past decade were treated badly does not militate in favor of releasing those who remain detained. But the first mandate, which addresses the issue most Guantanamo opponents pejoratively refer to as “indefinite detention without trial,” enjoys a more factually accurate predicate.^[1]  Of the more than 160 detainees presently at Guantanamo, less than 20 are likely ever to be prosecuted.  And regardless of the military commission vs. federal court debate, detention at Guantanamo cannot be justified by a handful of criminal trials. Even if factually accurate, however, this critique too is inapposite.  Those who persist in the mantra that the absence of criminal charges undermines legitimacy fail to acknowledge that every detainee at Guantanamo has had access to independent U.S. courts to contest the propriety of his detention, and the lawfulness has been repeatedly confirmed.  In nearly all cases, peacetime detention is indeed based on criminal conviction, but that has never been the case in war. Only two dozen alleged war criminals were prosecuted at Nuremberg; hundreds of thousands of prisoners in that war were detained without access to courts. During war, detaining indefinitely without trial is neither unlawful nor inconsistent with our values.

Confluences and Gaps

So why the continued controversy?  The fundamental reason is a misunderstanding caused by the confluence of relevant legal regimes: that associated with law enforcement, and that related to war.  President Bush clearly viewed al-Qaeda’s attack as an act of war, the response to which became known as the “global war on terror.”  But he also spoke of bringing the perpetrators to justice—hearkening to the criminal justice model used almost exclusively prior to 9/11. When President Obama took office, he altered the semantics, but he did not abandon the legal framework of armed conflict.  To understand U.S. detention policy over the past decade is to recognize that the authority for detention flows not from peacetime criminal justice authorities but from the nature of warfare and the law of war that regulates it. Confusion is understandable.  Prior to 9/11, the principal means for dealing with terrorists—at least those without a known State sponsor—was that of law enforcement.  The Pan American Flight 103 bombing; the 1993 World Trade Center bombing; the 1998 embassy bombings in Nairobi, Kenya, and Dar es Salaam, Tanzania (notwithstanding a brief Tomahawk missile attack); and the 1999 USS Cole bombing, serve as examples.  The dominant legal framework internationally was human rights law and domestically it was criminal law. In the fall of 2001, however, the United States went to war against a transnational terrorist organization.  Controversial as it may seem today, resolutions by international and domestic organizations in 2001 evidenced widespread acknowledgment that 9/11 warranted shifting to the war paradigm.  International acquiescence was admittedly fleeting, but regardless of the justification to go to war, discussions about internment must acknowledge the de facto state of armed conflict.  And the law that applies during armed conflict is international humanitarian law—the law of war, which permits internment until the end of hostilities. Criminal detention’s purpose is to punish past behavior; law of war detention is designed to protect against future threat.  Exacerbating the confusion this causes are gaps in applicable law.  The most relevant law of war norms were drafted for lawful combatants in an international armed conflict, not for non-international armed conflict against unprivileged belligerents.  Coupled with the apparently limitless geographic reach of our intentions (“global”) and use of a common noun to define the enemy (“terror”), the angst in a rule of law-based society is understandable.  But it is misplaced.

Self-Inflicted Wounds

We exacerbated perception problems by failing to explain—and perhaps understand—the relationship between war and law enforcement.  By announcing an intention to use military commissions (a wartime law enforcement tool) contemporaneous with the mandate for the Defense Department to detain captured terrorists, we created expectations that our response would be a more robust criminal justice effort.  And by choosing Guantanamo for reasons unrelated to the law of war—i.e., domestic litigation posture—we contributed to perceptions that gave rise to the moniker, “legal black hole.”  Most importantly, however, we failed to refer to the detainees as prisoners of war (POWs), the traditional and appropriately descriptive term most familiar to relevant audiences. Ironically, the terms, “unlawful combatant,” “enemy combatant,” and “unprivileged belligerent” were selected to avoid confusion.  Indeed, detainees in this conflict technically do not qualify for the status conferred by the Third Geneva Convention (GC III), which provides rights to POWs in conflicts between states.  But the descriptor, “prisoner of war” pre-dates its use as a term of art in the Geneva Conventions, and explaining the inapplicability of particular treaty provisions would have caused far less confusion than explaining that detention authority for “unlawful combatants” is not premised on criminal conduct.[2]  Current terminology aside, Guantanamo’s detainees are prisoners of war, and the standards that apply to their detention derive from the law governing armed conflict. In its simplest terms, warfare amounts to killing or incapacitating the enemy while preventing the reverse.  Indeed, when one considers the alternative to detention—lawfully permitted killing—detention is more aptly characterized not as a deprivation of liberty, but as a preservation of life.  So there is a reason our commander-in-chief, committed as he is to the rule of law, has not immediately ceased indefinite detention.  Closing Guantanamo may be a foreign relations imperative, but neither law nor moral compunction mandate it.

Filling the Gap

Even accepting the propriety of indefinite detention in war, one still finds a paucity of positive law to regulate it.  The past century’s prisoner of war model is ill-suited for this particular conflict.  Today’s war involves greater difficulty in both identifying enemy forces and determining the end of hostilities.  In this regard, some disquiet evoked by law of war detention is appropriate, as are efforts to adjust the traditional POW model. Some have suggested that the proper adaptation is simply to adopt the related human rights law requirements of a criminal trial.  Although not legally required for detention in war, prosecution is certainly permissible, and its well-developed procedural framework makes it the panacea for those who fear the rule of law’s sunset.  But there are reasons prosecution has rarely been employed as a significant component to war-fighting.  Besides putting intelligence at risk through disclosure at trial, the criminal justice paradigm requires proof beyond a reasonable doubt—a standard too high to use for targeting in war. In most wars, trial only makes sense to punish individuals for misdeeds beyond mere enemy status and to detain them beyond the end of hostilities.  In contradistinction to history and common sense, however, our use of military commissions has upended this model.  In a perversion of the criminal justice system, we have supplanted law of war detention with prosecution and released after only a short criminal sentence detainees who would otherwise be held until the end of hostilities.  Thus, “punishment” has become an opportunity for earlier release.  There are good reasons to prosecute an alleged criminal, but manufacturing a retrospective justification for wartime internment is not one of them. Prospectively, the impact is equally perverse.  Attractive as the additional process may appear from an ivory tower, it has the practical effect of incentivizing killing over capture.  The last thing this country should tell a young soldier is that he or she has lawful authority to kill another human being, but if the alternative of capture is elected, the higher standard of proof beyond a reasonable doubt will be required.  It should be harder to kill than to capture, but requiring an indictment to justify detention inverts that principle. The United States has spent the past decade filling the gap in a more principled way: developing review processes to ensure each capture and detention is both lawful and necessary.  Widely recognized as a significant development related to the law of war, these processes were adopted in the recently negotiated Copenhagen Process Guidelines, which identify best detention practices for international military operations. Although useful in ameliorating the first difficulty of ensuring correct classification of the enemy, this U.S.-led policy development has provided little help for the second, identifying the cessation of hostilities.  The only morally responsible way to end law of war detention is the same today as it has been for centuries: end the war.

The Right Future

The Light in Guantanamo’s Shadow

If law of war detention is legally justified, and detaining enemy combatants is both a wartime objective and a moral imperative to limit loss of life, then do we really need to end it?  The unequivocal answer is “yes,” but not because wartime detention is a departure from our core values.  The tree of our character is intact, but its shadow, Guantanamo, is presenting an ugly image. We are left then with the question of whether a modicum of improved reputation warrants so significant a decision as to start or end a war.  It cannot.  Compliance with the law—our character—is indeed sufficient reason to accept risk to our security; we do it every day in the criminal justice context.  But public diplomacy—our reputation—is not. Moreover, those disturbed by law of war detention are rarely sanguine about the use of drone strikes as a means of protecting America’s security; closing Guantanamo will only cause the target of criticism to shift.  What sense is there in releasing a detainee who could be lawfully killed later?  Does that really protect his human rights? Ultimately, the war itself is at the root of our discomfort.  POWs are simply a living reminder that war necessitates a temporary degradation of human rights protections.  Here we find that one of the ironies associated with Guantanamo actually works to our benefit.  But for the misplaced animosity toward detention, another characteristic of 21stcentury war-fighting might have escaped unnoticed; we might have lost the ability to recognize the costs of war and the concomitant need to draw it to a rapid conclusion. Sun Tzu said, “There is no instance of a nation benefitting from prolonged warfare.”  This maxim was manifest in previous conflicts, but the ravages of today’s war are far less pronounced to those at home.  Unlike the counter-insurgencies in Iraq and Afghanistan, which have or soon will conclude, the war against al-Qaeda involves kinetic strikes of limited consequence to the distant computer terminals that direct them.  And even international condemnation is short-lived because little can be done to rectify the damage.  Conversely, detainees persist—as does the call to release them. Our instinct is to respond to criticism, but that can be a dangerous endeavor.  By releasing POWs and attempting to make war more palatable, we make it easier to remain at war.  War begins to look less like hell and more like purgatory—a purgatory that can be incrementally improved. More importantly, we put substance at risk for the sake of appearance.  By reacting to misdirected criticism, we fail to keep the divergent legal regimes of war and law enforcement distinct.  Applying peacetime human rights law norms during war throws off the equipoise between military necessity and humanitarian interests to the detriment of both.  Applying law of war norms during normal law enforcement operations facilitates the degradation of civil liberties.  And all this occurs while the arrogation of wartime Presidential authority becomes the new norm—a contemptible situation for a nation committed to the rule of law.

Finding the New Normal

Only by ending the armed conflict will we be able to grapple intelligently with the peacetime civil liberties issues that will persist in a post-9/11 world.  The struggle against terrorism will continue into the foreseeable future, but the legally cognizable armed conflict with al-Qaeda—the one that permits killing people in distant lands and detaining them without trial—should not.  In the long term, the global struggle against terrorism must be fought with law enforcement, economic means, and other soft-power mechanisms. We cannot kill terrorism with a drone. Obviously, this war’s conclusion will not be marked by a surrender ceremony or mutual agreement; only the United States can determine the conditions that make the return to law enforcement possible.  The precise criteria we use to determine when al-Qaeda’s capabilities are sufficiently diminished is a topic for another venue, but the point is that our efforts should be directed to that matter as opposed to incremental reductions in the Guantanamo population. Admittedly, the difficult task of determining what circumstances warrant a return to the law enforcement model does not fully resolve the threat of those still detained.  But it clarifies the moral calculus.  Just as our commitment to the rule of law drives us to release the violent criminal who evades conviction, the legal and moral justification to hold a Guantanamo detainee without trial disappears at war’s end.  Then, and only then, does Guantanamo shift from measuring the shadow of our reputation to the tree of our character. In his first post-9/11 address to Congress, President Bush warned that the war would not be over in weeks, but he also revealed his hope that in the “months and years ahead, life will return to almost normal.”  Our country never should view war as “normal,” but we are coming dangerously close to doing so.  Robert E. Lee’s quip is apropos; “It is well that war is so terrible, lest we should grow too fond of it.”   We should be wary of ending law of war detention while armed hostilities persist.  Doing so amounts to an attempt to make war seem less terrible while actually making it more so. It makes no sense to release prisoners of war while we continue to kill their confederates.  Internment not only provides a more humane alternative to killing, it is as well operationally prudent because it allows us to exploit captured materials for intelligence value and humanely interrogate detained combatants.  Wars are won by fighting them effectively, and effective war-fighting means capture, interrogation, and detention.  We should not allow a short-term campaign promise—however well-intentioned and values-inspired—prolong an armed conflict. Ending this war is the right way to close Guantanamo.  But it is also necessary to prevent us from slipping into a state of perpetual quasi war that could undermine more permanently our civil liberties, invest too much power into the hands of our executive branch, and exacerbate the legitimate concerns of a global community that rightly seeks a status quo in which we engage in armed conflict only as a last resort and only for such time as is absolutely necessary. Until we are able to shift back to the pre-9/11 law enforcement paradigm, our focus should be less on closing Guantanamo and more on winning this war.  It is time to seek the “almost normal” President Bush envisioned.  That, in turn, will give President Obama his closure of Guantanamo. William K. Lietzau served as Deputy Assistant Secretary of Defense, Rule of Law and Detainee Policy until 2013. The views in this article are those of the author and do not necessarily reflect the views of the Department of Defense or the U.S. Government.