The Least Worst Place: Guantanamo's First 100 Days
By Karen Greenberg
$27.95, 288 pages
Oxford University Press, New York, March 16, 2009
On December 27, 2001 Secretary of Defense Donald Rumsfeld made the announcement that Guantanamo had been chosen as the public prison site for combatants picked up in Afghanistan's battlefields.
"I would characterize Guantanamo Bay, Cuba, as the least worst place we could have selected. It has disadvantages, as you suggest. Its disadvantages, however, seem to be modest relative to the alternatives."
Those disadvantages included the fact that the place had been essentially mothballed, and was in no way logistically prepared to handle the hundreds of prisoners that would come its way, either in terms of resources on the ground or staff trained in prison duty. The primary advantage, which Rumsfeld kept to himself that December day, was that the Pentagon and the administration had concluded that Guantanamo was a legal no-man's land, beyond the reach of either the American or international system of law.
Karen Greenberg's The Least Worst Place provides an engrossing narrative account of the first one hundred days of Guantanamo, and the men charged with getting it open and running. Greenberg, an expert on the Bush administration's policies on terrorism from her role as executive director of the Center on Law and Security, NYU School of Law, effectively shows in a running parallel narrative on the development of the administration's extralegal policy and the establishment of the prison.
Out of that narrative, a number of themes emerge. The strongest is the real tension that exists in the military culture between doing what needs to be done to defend the nation and doing so within the rules. When the rules are thrown out, we get the result that we got in Guantanamo, and later in Abu Ghraib.
Guantanamo's first commander, Brigadier General Michael Lehnert, understood what could happen in a policy vacuum when a group of gung-ho troops and Marines were put in charge of the people they were told were the terrorists responsible for 9/11. With essentially no early direction from the Pentagon, Lehnert did his best to turn his command into a functioning detention unit--with untrained staff--that followed the only rules that existed for detainees, the Geneva Conventions. As days passed, it became increasingly clear that Rumsfeld and his bosses had no intention of following those rules, and then the struggle for Lehnert and his colleagues really began.
This part of the story effectively highlights the very real damage done to our military in "the war on terror." The toxic mixture of inadequate planning, incompetence, arrogance, and the conviction that the rules didn't apply to them that characterized Rumsfeld and the military and intelligence leaders in the White House directly resulted in the abuses at Guantanamo and Abu Ghraib. Rumsfeld and the White House made deliberate decisions, like an unprecedented joint command between detention and interrogation units that broke the chain of command, that led to a broken military and the horrific abuses at these prisons. Those decisions were deliberate: the administration was purposefully creating limbo. As Greenberg says:
This, then, was the sand on which the Guantanamo operation was precariously built. It was ominously shifting ground on which no person, no code, and no precedent could weigh in with authority. It was not just a legal black hole, as it came to be called later. It was also a military black hole, a legally compromised operation whose premise would ultimately come to threaten the integrity of the military and those under its command.
Lehnert and his colleagues had one success--they were responsible for getting the Red Cross (ICRC) to Guantanamo, without clearance from the Pentagon. Military lawyer Col. Manuel Supervielle, frustrated by the legal limbo in which they were trying to operate in those early days, and without authorization from higher up, directly called the ICRC and invited them to Guantanamo, for which he was roughly rebuked. Ironically, the presence of the ICRC ended up being a boon to the PR efforts of the administration--how bad could Guantanamo be, they argued, when the ICRC was there.
It's a testament to the Greenberg's skill in telling this important story that, even though you know how the particular history of these men and their role in Guantanamo ends, you nonetheless find yourself rooting for Gen. Michael Lehnert, Cpt. Robert Buehn, Lt. Abuhena Saifulislam, Col. Manuel Supervielle, and Cpt. Albert Shimkus to prevail. The Obama administration should strive to make sure that Guantanamo's final 100 days emulate what these men tried to do in its first 100 days--make Guantanamo a place America could be proud of. It's too late to erase the stain, but transparency, strict adherence to the rule of law, and an expedited process will at least partially ameliorate it.
Ms. Greenberg answered a few of my questions about the book and where we go from here, and that discussion is below the fold. She is also joining us to liveblog and answer your questions.
1. Can you provide a bit of background on what brought you to the project?
I was interested in writing a story of the military on the ground at Guantanamo and was doing preliminary interviews. One initial thought was that it's one thing to point at decisions made at the top by looking at the nation's top officials, but perhaps we'd learn something by looking at those actually tasked with handling the detainees - in this case, the first military unit to receive them. I had originally thought I would cover a broad spectrum of the Guantanamo story - but as I began to do these initial interviews, I began to see a story which others had ignored, largely because the narrative of abuse and the court cases had understandably become the focus of so much investigative research. This story, of the initial attempts to have a humane and legal policy for the detainees and for bringing them to trial - and of the personal battles that ensued on the ground - was just waiting to be told. And, as I scratched at the surface, and discovered the wealth of personalities that would eventually make up the story, the project came to life on its own.
2. How did you get so many military and intelligence officers to participate by being interviewed?
I began with the commander of the operation, General Michael Lehnert. Once I had talked to him, I began to contact other members of his command team. And as each talked, others seemed willing to share what they knew. I will say that it took some patience and some understanding of their reluctance to trust me, so it required multiple interviews and multiple trips to get to know each one of these individuals. The sense I got, however, was that each of them wanted to tell his story.
3. There seems to be some reticence on the part of these officers to really speak out against Rumsfeld and the way the Bush administration handled the whole operation. Do you have a sense that these officers still feel duty-bound to protect their commanders, and the executive branch decision makers? Or were they interested in setting the record straight on the early days of Guantanamo?
It's less about protecting their commanders than about respecting themselves and the oaths they took. Often, their opinions were conveyed to me initially by off-the-record comments. I tended to stay away from pushing them further until they were ready. The fact is that much of this story is apparent in events and actions--for example, calling in the International Committee of the Red Cross despite the clear signal that this was not something that Washington wanted, or the Lehnert's clear directives about a policy that followed Geneva as well as his decision to visit the cells in the middle of the night, arriving unexpectedly and thus keeping everyone on their toes. As for setting the record straight on the early days of Guantanamo, yes, there was this sentiment, but many of them knew only their piece of the story, so putting it all together was a large part of the reporting challenge.
4. Did you directly interview detainees/former detainees, and how did those interviews come about?
Yes, and these interviews came about by making contact with leaders of the community in which they live. In addition, some of the most compelling versions of what happened in these 100 days come from published accounts that have appeared in European countries. The detainees experienced a noticeable difference between the first general and his team and those who replaced him. Their stories about the Lehnert's persistent and personal attempts to settle the first hunger strike by acceding to their demands give a picture of the way in which Lehnert tried to push back against the dehumanizing, de-individualizing and destabilizing efforts of others, for example, of those who were involved with the interrogation mission.
5. Do you have a sense from your experience with the detainees and researching the book what percentage of detainees really are the worst of the worst, and how many were either peripherally involved in terrorism, or were just in the wrong place at the wrong time?
It's possible that we will never have a full answer to this question. The "worst of the worst" would be most applicable to the 14 High Value Detainees who were brought to Guantanamo in late 2006--among them Khalid Sheikh Mohammed and Ramzi Binalshibh. Another three dozen or so will likely be tried--and therefore it can be assumed that there is evidence against their association with terrorists, even of terrorist activity. But for the most part, as the intelligence officer in charge of the operation in these first 100 days, admits, it was clear that the majority were hangers-on, ne'er-do-wells perhaps, who had been picked up for being in the wrong place at the wrong time. This was evident from the very first day of arrival when, expecting monsters with extraordinary powers, the military watches as small, frail men descended from the plane, among them a 90 year old and another man in advance years as well as a diagnosed schizophrenic, conveying the sense that this was a group selected randomly rather than the "worst of the worst." As time went on, this impression only intensified.
6. There seems to have been a concerted effort coming from the Pentagon to subvert Obama's efforts to close Guantanamo down, either in the form of military judges resisting his order to halt commissions, or the release of dubious information about the number of freed detainees who ended up rejoining terrorist organizations. In the midst of that, the Washington Post reported, "incoming legal and national security officials--barred until the inauguration from examining classified material on the detainees--discovered that there were no comprehensive case files on many of them." From what you've learned, are those case files really non-existent, or is it part of a delaying tactic on the part of the DoD and intelligence factions that want to keep Guantanamo open?
This is an important question, so thank you for asking it. There does seem to be a concerted effort to stymie and stall this administration's attempts to close down Guantanamo, in just the ways you have described. As for the files on the detainees, my guess--and it is only a guess--would be that there was indeed disarray in the system and that they haven't really be organized and collated well until this day. What the first 100 days show is that the Pentagon went out of its way to toss professionalism - of the military, of the legal profession - to the winds. As a result there was a sloppiness introduced that was clear even in the way the Combatant Status Review Tribunals were recorded and catalogued in subsequent years- not to mention in the later military commissions proceedings. Operating in a cloudy system, that stepped away from known legal and operational policy, all of which was initiated successfully at the end of these 100 days, served the purposes of hiding the facts and leaving the government's say-so as the only record of what we knew.
7. Your book has a great parallel structure, tracing the legal machinations within the Pentagon and White House on detainee legal status and torture with the developments of those decisions on the ground at Guantanamo. One of the key stories that emerges is the fight between the OLC and State department over detainee status and torture, fights that State lost. In an interview with Rachel Maddow this week (see Think Progress for details) former Sec. of State Powell claimed ignorance about the OLC memos that specifically authorized torture, and questioned whether the tactics used were actually torture. Given what you know about the back and forth between the OLC and State over these memos, do you find his denials credible?
Powell was the first person to point to interrogation in a memo. He did so when he drafted his response to the administration's January 2002 decision that the Geneva Conventions did not apply to non-state actors or conflicts within a failed state. He and his legal team, headed by William Taft IV, understood in early 2002 just what they were up against. They knew that the issue of interrogation central to the decision regarding Geneva. This does not mean that they knew about torture, or the famous torture memo that came in August of 2002. In fact, his statement seems credible because by the time of the torture memo, Powell had already been excluded from the picture for a long time--excluded by the small cabal in the executive that created the detention policy.
That said, there seems to have been a degree of trust and naïveté inside the State Dept that proved over time to be enabling to the team of Addington, Haynes, Yoo and others. The thinking at the time was that the US government would never take the kinds of liberties that these documents would allow, that they were just holding out possibilities for themselves, but that nothing nefarious or untoward would actually occur.
In hindsight, the signs of a willingness to subvert process and create a space outside the law was apparent as early as November 13, 2001 when the president issued his Military Order declaring that the detention, treatment and trail of non-citizens in the war against terrorism would be the purview not of the department of Justice but of the Pentagon and the Secretary of Defense. (Importantly, it seems that Powell had no advance notice of the Order until it was made public.)President Obama's first executive orders (issued nearly three years to the date of the Powell memo referenced above) apparently recognized the Military Order as pivotal and specifically reintroduced the formal participation of the Department of Justice, (as well as other branches of the executive), in the process of detention and trial. The sad fact is that Powell could have stood up with greater strength when these early memos about Geneva were being drafted. Had he trusted his instincts, he might have been able to disrupt the move away from the rule of law and towards policies of abuse and detention without due process.
8. From your perspective, where should the new administration go from here in shutting down Guantanamo and dealing with the remaining detainees? Is providing justice to the detainees enough in your mind to close the book on Guantanamo, or do you think there needs to be investigations, and potentially prosecutions, of the Bush administration officials for torture and other potential war crimes?
These are two separate issues--closing down Guantanamo, and the potential for prosecutions for those who created the extralegal space for detention and torture. And both merit some consideration. On the first, the new administration seems faces three separate challenges in closing down Guantanamo: They will try a few dozen individuals, they will return the vast majority to their home countries (or third countries). And then there is that third category--the category of detainees who are considered dangerous--too dangerous to release--but for whom there is not enough evidence (or usable evidence) to convict. From my perspective, this category is at best problematic, at worst a potential trap, keeping us bound to the policies of the Bush administration. I think that the President and his team are going to have to provide leadership in how to think about this issue. First of all, on the matter of trust. The Bush administration's obfuscation and poor judgment in discerning guilt versus innocence has left many of us distrustful of official assessments about the detained in terms of their guilt and innocence. All the moreso for the category of potential guilt. These are the kinds of considerations the Obama Administration will have to struggle through. One thing is for certain, the more individuals we release or try, the greater the effect on restoring the rule of law to the nation's detention policy. And with every person we place in an undefined state of legal limbo, the harm done to the country by the Bush administration lingers on.
On the second point, about prosecutions, this is a sticky wicket. The Obama administration has given out mixed signals. Yes, they have let it be known that the president would like the country to move on, and to avoid spending energy and resources on holding accountable those who got us into this mess. But at the same time, they have nominated to positions of influence in the Department of Justice some of those who most vociferously and on legal grounds opposed the memos that led to torture and the overall policy of detention under President Bush. So, too, the new Department of Justice has released more memos--and promises more to come--which provide newer details about the deliberate abuses of law that occurred during the war on terror. In addition, there is pressure building from outside the United States--notably in Spain--for bringing indictments against the lawyers responsible for these memos. So, too, there will continue to be cases in domestic courts about individual cases of wrongful detention and torture. In other words, this matter is not just going to go away. As a country, we would probably prefer to get our house in order by ourselves. Perhaps a fact-finding commission could be established to collect what we know--which by the way is substantive--followed by leadership which aims not necessarily to avoid prosecutions where the evidence is overwhelming but to exercise restraint about who is prosecuted so that any such process does not become a wide-spread and destructive affair.
9. Finally, is an update in the works for the book you edited, The Torture Papers: The Road to Abu Ghraib, now that the Department of Justice is releasing so many of the memos?
Good question. What I'd really like to compile is something called The Un-Torture Papers: The Road Back from Abu Ghraib--the way in which the Obama administration is trying to roll back point by point the memos and subsequent policies that led to the absence of law in matters of detention and interrogation. Nearly daily now, we have news of new policies being considered at Guantanamo, at Bagram and within the executive which are attempting to restore a sense of judiciousness and practicality to the matter of detention in the war on terror.
My biggest concern is that what administration lawyers and policy makers will decide--or have already decided--is that we can't return to the pre-Bush days, that we have to cede some ground to the their assertion that the war on terror requires new categories. From my point of view, the only thing that puts us in a position of requiring new categories is the fact that the prior administration changed the rules and thereby changed the game as we know it. Rather than contort and twist ourselves to accommodate those mistakes, my hope is that this administration will be willing to reject (and revoke where possible) the pathway we have set ourselves on, and exercise wisdom in addition to practicality.