Gitmo’s Czar Speaks Out

The closure of the U.S. detention facility at Guantánamo Bay, Cuba, has been on Barack Obama’s mind for a long time.

After promising time and again during the 2008 campaign that he would shut Gitmo, one of the president’s first acts upon taking office was issuing an executive order to close the facility within a year. Although the executive order went notoriously unfulfilled, Obama again raised the issue during the 2012 campaign, and has lately renewed his push to close the controversial prison, where 166 detainees remain in limbo.

Addressing Gitmo is more complicated than you might think, even for a president who framed the issue in stark terms on the campaign trail. And Obama — to the chagrin of the civil libertarians who supported his election — came to believe, according to author Daniel Klaidman, that some detainees were simply “too dangerous to release” even though they had not committed prosecutable offences.

Does that make Obama the second coming of Dick Cheney? No. The president’s view is in line with traditional law-of-war detention. In armed conflicts, detention serves a preventive rather than punitive function: Members of the opposing force are held not because they have violated the law, but because they are likely to return to the battlefield if released. (Though of course, it is possible to close Gitmo without trying or releasing all the detainees, as Obama’s previous proposal to move the site of detention to Illinois illustrates.)

Amid renewed debate about the issue, recent comments by William Lietzau, the outgoing Pentagon official charged with overseeing detainee affairs, have gotten quite a bit of attention. “Prison camp’s jailer-in-chief makes jaw-dropping U-turn,” blared a recent headline in Britain’s Daily Mail, the newspaper that reported his remarks. Has Gitmo’s czar suddenly switched sides?

The “jaw-dropping” statement Lietzau made to the newspaper was that if he could revisit decisions made some dozen years ago, Gitmo should never have been built. A reader might come away from the Daily Mail’s breathless report with the impression that Lietzau was a George W. Bush administration holdover who remained stalwart in defending the entire course of U.S. detention policy until making a dramatic reversal during his last days in office. But his thinking about U.S. detention policy in fact illustrates the complexity of the issue.

Lietzau, a Yale-educated lawyer and retired Marine Corps officer, is concerned about the way Gitmo has blighted the United States’ international reputation. He also, however, believes that effective law-of-war detention is a necessary part of any armed conflict, including the current war, because without it we would “incentivize killing in war.”

This war against non-state actors is a different kind of armed conflict, one that makes detention more difficult. It is harder to determine, when facing an enemy that wears no uniform, who is actually a part of the opposing force. And while it’s traditional to detain combatants until the cessation of hostilities, that is a murkier proposition in a conflict that won’t end with a formal surrender on the deck of the USS Missouri.

Lietzau granted me an exclusive interview on Aug. 9. We spoke about the driving factors behind U.S. detention policy, where it has gone wrong, and the unique challenges of fashioning an effective detention system outside the context of state-to-state warfare. An edited transcript of our conversation follows.

Q: Would you describe your recent comments to the Daily Mail as a “jaw-dropping U-turn,” which is the language they used to describe the interview?

Lietzau: Certainly not. For me it wasn’t a U-turn at all. The answers I gave in the interview were identical to answers that I have given to questions addressed to me for the last decade.[Note: At the Lawfare Blog, Benjamin Wittes has demonstrated that this claim is not just a latter-day reinvention on Lietzau’s part.]

Q: The major reason the Daily Mail paints your comments as a reversal is because it notes that under the Bush administration you “designed the Guantánamo ‘military commissions.’” What role did you play in setting them up?

Lietzau: It’s a bit extreme to say that I “designed” the commissions. The decision to conduct military commissions was made before I had got back to Washington. I was in San Diego after 9/11 before being called back to the Pentagon to implement the military commission decision. Not that I was in any way opposed to that decision; that is one perfectly valid way to address some of the issues that were facing the nation at that time. But I think it’s a bit extreme to say that I designed the system.

Q: You offered a few different policy prescriptions in that interview. Some of them involved what could have been done in the past, rather than setting up Gitmo. One of your suggestions was that detainees should have been designated prisoners of war at the outset. Is the major rationale that this would have set a standard of care for them that wasn’t always met during Gitmo’s life?

Lietzau: No, not at all. I believe that failing to refer to today’s detainees as prisoners of war was a mistake; but the decision to avoid that term was not made with malevolence, nor was it driven by some immoral or unethical analysis. It was a pragmatic decision, made to avoid confusion, because al Qaeda members did not qualify for the rights and privileges that would normally be accorded to prisoners of war under the most recent treaties.

But I think the term “unlawful combatant,” though accurate, unwittingly created more confusion than it avoided. The persistent refrain that Guantánamo is a “legal black hole” exists because of the misperception that they are being detained in some sort of pre-trial criminal context. They are not. They are detained in order to remove them from the battlefield, in order to mitigate their threat in an ongoing armed conflict, not to punish them for some past bad act.

The latter requires conviction based on proof beyond a reasonable doubt, after according one the protections associated with criminal due process. But prisoners of war can, and normally should, be held until the end of hostilities regardless of any criminal conviction. It would create a perverse anomaly to train our soldiers that they are permitted to shoot and kill enemy belligerents, which has never required proof beyond a reasonable doubt, but then to further train them that they are prohibited from capturing the enemy unless they have properly seized sufficient evidence to ensure conviction at the beyond-reasonable-doubt standard. The impact of such a policy would be to incentivize killing in war. Part of my job has been to ensure we did not head down a road in which we might incentivize killing over capturing in war.

Q: The Daily Mail article focused on how to empty out Gitmo, how to release the detainees. For people focusing on how to empty Gitmo, do you have any warnings about the dangers of doing so?

Lietzau: If we’re transferring someone to another country, we only should do that if we have appropriate security assurances that convince us that we’ve sufficiently mitigated the threat, so that the costs and benefits weigh in the direction of transfer. Those security assurances are necessary before it makes sense to transfer someone during an ongoing armed conflict.

But it would be a mistake to interpret the president’s May NDU [National Defense University] speech as suggesting that we can close Gitmo by transferring people home while the war is ongoing. Ultimately, we cannot use this process to release all detainees before the conflict itself ends. So the real question is how do you bring this war to an end?

Q: Putting all of your statements together, it sounds like you come down on the side that law-of-war detention is a necessary incident to armed conflict, whether against state or non-state actors.

Lietzau: Absolutely. Law-of-war detention during an armed conflict is a necessary constituent to any kind of war fighting, certainly any kind of war-fighting that’s done in an ethical and moral way.

Q: What do you think are the principal issues that need to be discussed and debated to make law-of-war detention against non-state actors more effective in the future?

Lietzau: We need to answer the hard questions that we really didn’t get to for years after 9/11. If this is an armed conflict, if law-of-war detention is appropriate in that armed conflict, what are the changes we may need to make in the way we normally conduct detention practices for this particular type of conflict? You need to look at what characterizes this conflict that we didn’t think of when we came up with the Geneva Conventions.

I would say: First, it is more difficult to figure out who the detainees are, if they are the enemy or not, because they are not wearing a uniform. Second, it is more difficult to determine when the end of hostilities is, because not all of the enemies are committed to exactly the same group and cause and purpose, for exactly the same period of time and reasons. And that is what we have done over the years — developed a set of processes, or detainee review boards and review processes, that help us to make a principled decision on whether we have legal authority to hold this person, and whether their threat is really sufficient that we need to hold them.

Q: Now that you’re on your way out of your post, what kind of contribution do you hope to make to this public debate in the future?

Lietzau: I would like to continue what I have tried to do in this job: explaining to the world the difference between what the first critics thought Guantánamo and detention was about, and what it really is. I would like to have them recognize that this is part of fighting a war. The focused attention of critics on detention was misplaced. It should be placed on: What are the parameters that will define this war? When does it begin? When does it end? Who is the enemy? Those are decisions that in other kinds of armed conflict are made by circumstances and decisions of the warring parties. Someone surrenders. We’re not going to have that in this war, so it is up to the United States to decide when we are no longer involved in an armed conflict.

The other thing that I would like to make sure the world understood is that the people who decided to open Guantánamo were well-meaning, honorable American patriots, even though in hindsight the decision did not play out well. Similarly, those who stand guard over detainees in Guantánamo, or in Afghanistan, represent the very best of America. Guards at our facilities have to face every day an enemy committed to killing them. They are attacked daily with everything from urine and feces mixtures to makeshift weapons. And they consistently perform their duties in an exemplary professional manner that requires constantly turning the other cheek.

And the third thing, we need to make sure we have captured the lessons learned from this decade so that next time we run into this kind of a situation, hopefully we have thought through some of the other kinds of armed conflicts we could run into.

Daveed Gartenstein-Ross is senior fellow at the Foundation for Defense of Democracies, adjunct assistant professor in Georgetown University’s security studies program, and author of Bin Laden’s Legacy. He earned a J.D. from the New York University School of Law and has written extensively about the legal and pragmatic issues surrounding U.S. detention policy.