The National Interest

IN FEBRUARY, four weeks into office, the Obama administration released its first prisoner in the war on terror—Binyam Mohamed. An Ethiopian citizen, Mohamed had been granted asylum status in Britain, a status which lapsed in 2004, around the time he arrived at Guantánamo Bay. Mohamed claims to have been picked up in Pakistan in April 2002, flown to Morocco where he was tortured—beaten, his penis and chest cut with a scalpel, his body burnt—and then sent on to Guantánamo, all apparently under American auspices. In this first release, there were some curious parallels with the Bush administration’s version of emptying Guantánamo. Obama’s team saw the transfer of Mohamed to UK custody, like the Bush White House saw the transfer and release of over 550 detainees, as a matter ultimately of diplomacy, not of legal process, one that relied upon political alliances. Moreover, the release took place outside of the military-commission proceedings. Although Mohamed was represented by Clive Stafford Smith, one of the most well-known of the detainee defense attorneys, his release, it seems, was essentially the decision of the president, not of any trial or review process. As the original commander at Guantánamo has said about the release of detainees under the Bush administration, it took a petty officer to put a detainee on a plane to Guantánamo and a presidential order to get him out.

If nothing else, the release of Mr. Mohamed was symbolic. President Obama introduced his presidency with three executive orders, all of which were meant to indicate that he placed the issues of Guantánamo and detention high on his list of priorities, despite the overwhelming demands of the financial crisis. He had decided to make a radical break with the Bush administration’s policy on detention and interrogation, for which Guantánamo has become the most visible symbol. Those orders announced closing that prison within a year, a thorough review of detention policy and the determination to keep interrogations in accord with the current U.S. Army field manual’s protocols. Keeping the link between addressing the wrongs of the past and creating viable future detention and interrogation procedures, the president appointed not only a task force for closing Guantánamo but also parallel groups for hammering out new policies.

But executive orders are not magic wands. The case of Binyam Mohamed does make one wonder: Just how different will the new president’s approach to detention and interrogation be? How much leeway exists given the situation he has inherited? Can he actually make a break with the past while also conveying the sense that he is keeping the country safe? And, realistically, can he make this sharp turn and still maintain a good working relationship with the CIA (a political consideration that cannot be overlooked)?

We still have prisoners—and plenty of them. We still have no acceptable legal denomination for those under guard. We still have no legal mechanisms to try the detainees. And we still lack the kind of training and policies that prevent torture and abuse.

The costs of this cannot be overstated. Our policies have hindered America’s ability to fight terrorism.

Alienating allies, not to mention stymieing the cooperation of Muslim communities, is what happens when you detain the ne’er-do-wells and bystanders along with the criminals absent due process. The strategy of being an independent player whose activities are secretive and whose judgments are noncollaborative denies America the essential aspect of capturing violent extremists: international cooperation. Terrorists’ motives and deeds must be pieced together from various transnational sources. Counterterrorism is a global effort in which assistance and support between nations are essential.

If we course-correct, our international reputation can be salvaged. If we create viable policy, we will finally have the ability to separate the innocent from the guilty.

The world, and the nation, await a new direction. But in this case, plus ça change . . . is the fear.

FOR STARTERS, we might look at the legacy that has been left to the new administration. Where do we stand now in terms of military commissions, transparency about the nature of the detainee population and the issue of treatment—the main concerns that dominate the detention discussion?

To be sure, Obama inherited prisoners. And more, he inherited a seven-year failure to make exact numbers on the detainees available to the public. We only have approximations. About 240 detainees remain in custody at Guantánamo, a fraction of the total detainees in U.S. custody; those estimates range anywhere from 22,000 to nearly twice that number. In Iraq, the numbers hover around 13,000 as of late March 2009. There are 600 reported to be at Bagram Air Base in Afghanistan and approximately 2,300 at Pul-i-Charki outside Kabul. (According to a congressional report, up to 14,000 people may also have been victims of rendition and secret detention since 2001. Other reports estimate there have been double that number.)

To put this in perspective, during the Vietnam War the United States held approximately 35,000 people; during the Korean War, approximately 170,000 prisoners. But importantly, in neither instance was the United States the custodial country. Instead, the host countries—Vietnam and South Korea, respectively—were in charge of the detention efforts. America served in an advisory capacity only. In the war on terror, under the Bush administration, the United States decided to hold its own prisoners.

Decades of peace had reduced the need for prisoner-of-war guards, and the downsizing of the military in the 1990s meant that nonessential skills were phased out or downgraded. As a result, the United States did not have a viable guard force trained for this purpose on 9/11. There were military policemen and guards, some of whom were used at the country’s only maximum-security military prison—Fort Leavenworth. But the U.S. Army, tasked with detention operations, still has not developed a strong detention capacity. This means, as opposed to in past wars, America simply does not have the ability to properly deal with the prisoners. The result is that, where training is lacking, unprofessional behavior can thrive, as it did most infamously at Abu Ghraib. And, unlike in past wars, the United States is seen as responsible for the resulting abuses. Witness Spain’s intention to indict six of the lawyers involved in writing the torture memos.

Legally, all told, the policy bequeathed to President Obama is at best broken, at worst still undisclosed. The United States has had a policy of detaining individuals without charge and without access to a functioning judicial process. While habeas corpus was eventually extended to the Guantánamo detainees, the military-commission process still falters consistently. In seven years, only a handful of detainees have even been charged. Legally, the detention policy at Guantánamo has amounted to a virtual stalemate, with the Supreme Court pushing back against administration policies and Congress passing legislation that attempts to counter the legal determinations of the highest court in the land.

Similarly, the process of releasing individuals from Guantánamo has been excruciatingly slow and sometimes completely blocked. Those who have been declared eligible for release or transfer—a status once referred to as “No Longer Enemy Combatants”—have been placed essentially in the hands of the nation’s diplomats. Currently, according to a January Department of Defense press release, approximately 60 detainees who have been ordered to be released still remain in Guantánamo. Where countries of origin are allies of the United States, detainees can be transferred or released. For those from countries with which we have weaker or more problematic diplomatic ties, the possibility of release or return, even after approval from U.S. authorities, often remains a wish rather than a reality. We should not underestimate the costs of this limbo. Not only does it do damage to the detainee who is neither released, transferred nor scheduled for trial, but also to the credibility of the United States. America often does not release in any timely fashion those it has named to be freed or to be transferred to custody elsewhere. The United States can no longer be taken at its word, and its judicial process no longer stands as a model of liberal freedoms.

As to treatment and conditions in Guantánamo, the Bush legacy is disastrous. Throughout its tenure, the Bush team maintained that conditions at Guantánamo were humane, that the provision of halal food, of Korans, and of religious items such as prayer caps and prayer beads signified humane treatment. This was despite the refusal to charge detainees with criminal offenses and the concomitant legal purgatory to which they were consigned. Until the Bush administration left office, officials claimed a system without due process could be made humane and lawful by the provision of a religiously sensitive diet.

The fact remains that the practice of torture has affected every aspect of U.S. detention policy in the war on terror. It has affected our ability to try these cases in domestic courts; it has vastly complicated our dealings with foreign nations over the matter of detention; and it has taken torture out of the legal Pandora’s box and made it government policy. Abuses have been documented not only at Abu Ghraib but at Bagram and at Guantánamo Bay—that’s not to mention the secret prisons.

GIVEN THIS opaque and legally dubious inheritance, the question remains: will the United States be able to make any progress in the matter of detention?

There are already some signs of where the new administration is heading. One of the president’s key first moves was the clear directive that matters of detention be shared by the Pentagon and the Department of Justice and that, in matters of trial, the Department of Justice take the lead. The president continued this turn away from Bush’s policies with a decision to end the use of the term “enemy combatant.” The United States no longer holds unlawful enemy combatants, a phrase without legal precedent and therefore with a cloudy and unreliable definitional value.

Changes in language and structure matter. The removal of dubious legal terminology for the prisoners and the establishment of a legal structure that should have been in place long ago are essential first steps toward an acceptable detention policy. When it comes to prisoner release, the administration has similarly signaled that it recognizes the burden it faces, and the structural remedies that need to be addressed before any coherent and sustainable policy takes shape. Accordingly, the State Department, so often sidelined in the Bush administration, is a vital presence in the task force on closing Guantánamo.

So, too, the president has signaled his administration’s intention to reduce the number of prisoners in custody. Currently, the total U.S. detention population has dropped in Iraq from an estimated high of 100,000 down to 13,300. In January, following a trend established under the Bush administration’s status-of-forces agreement with Iraq, the United States made plans to reduce the number of prisoners in Camp Bucca, which currently stands at under 10,000, by 1,500 a month (some set free, some transferred to the custody of the Iraqi government), and to close the camp entirely by 2010 or sooner. Of 2,120 cases reviewed this year, 129 have been scheduled for trial by the Iraqi authorities. Baghdad’s Camp Cropper, which holds approximately 3,000, is scheduled to close in the next year as well.

The current trend holds some promise that the United States can change course by offering charge or release to future detainees, and by sorting out the guilty from the innocent at an earlier stage of the process. In addition, the new administration could specify reasons for detention, and reject the use of detention as a means of appearing tough while operating outside of accepted legal conventions.

But there are some troubling signs as well—signs that despite good intentions, Obama administration officials may be reluctant to reset the agenda to what it was before the policies of the Bush administration. Witness the creeping indication that the new administration perceives insurmountable obstacles to remedying the situation entirely.

AT LEAST four recent decisions made by the Obama White House raise some serious doubts about progress.

On February 9, the administration signaled that in the area of extraordinary rendition, it was not yet prepared to move away from the state-secrets privilege in the manner originally claimed by its predecessor. The Bush administration had called for the dismissal of cases brought on behalf of tortured individuals in matters relating to extraordinary rendition. In these cases prisoners were picked up in one country and sent to another to be tortured, hence the term rendition to torture. And, in many cases, the detainees may want recourse in civil courts. For example, in the case of Binyam Mohamed v. Jeppesen Dataplan, Inc., the plaintiffs have sought damages and what they see as justice. Government lawyers under Bush, however, tried to convince the courts to dismiss these cases on the grounds that proceeding would jeopardize national security by revealing sensitive information.

Alas, not much is changing under Obama’s lead. Now, in this same case—which concerns the use of planes for CIA rendition to torture—administration lawyers continue to claim the right to invoke the state-secrets privilege. This is despite the fact that much of the evidence about the flights has been documented by journalists and others as carrying terrorist suspects (under the Bush administration’s extraordinary-rendition program) to countries such as Morocco and Egypt and to CIA black sites. At oral argument on Feb. 9, 2009, Appellate Judge Mary M. Schroeder of the Ninth Circuit asked the DOJ attorney, Douglas N. Letter, if the DOJ was interested in modifying its arguments from those made before the lower court dismissed the case at the government’s urging a year previously:

JUDGE SCHROEDER: Is there anything material that has happened since, in terms of the historical stage, that has any bearing here?
LETTER: No, your honor. No.
JUDGE SCHROEDER: The change of administration has no bearing?
LETTER: No, your honor.
JUDGE SCHROEDER: The government’s position is the same?
LETTER: Exactly, your honor. The position that I’m advocating here remains the position of the director of the CIA. He stands behind his declaration. The positions that I’m arguing [have been] thoroughly vetted with the appropriate officials within the new administration, and these are the authorized positions—
JUDGE SCHROEDER: So you represent that you’re conveying the views of the present Justice Department?
LETTER: Exactly, your honor. Absolutely, absolutely.

Given ample opportunity to claim a change of direction, government lawyers insisted that they were standing by the briefs as-filed, meaning that they were adopting the arguments previously made. (Actually, the attorneys arguing the case hadn’t even changed.) Like the Bush administration, Obama’s team claimed that national security would be jeopardized if the facts of the case came to light. Subsequently, government attorneys, citing the state-secrets privilege again, threatened in a separate case—al-Haramain Islamic Foundation, Inc. v. Obama—to withdraw previously submitted evidence should the judge rule that the evidence must be disclosed to the defense.

On February 20, the Obama administration announced that, as to the question of whether or not detainees at Bagram would have access to habeas corpus, it again agreed with the precedents set by Bush. As opposed to Guantánamo, there would be no habeas for the prisoners in U.S. custody in Afghanistan. However, a federal judge in Washington rejected the Department of Justice’s position on April 2, finding that at least some of the detainees held at Bagram do have a right to be heard. District Judge John D. Bates ruled that three of the detainees in the cases before him—who claim to have been captured outside of Afghanistan (as many at Guantánamo in fact were) but transferred to Bagram and held there for years—have a right to habeas relief. (As to a fourth detainee, Judge Bates found that the prisoner’s Afghan citizenship tipped the scales in the opposite direction.) So, as under the Bush administration, the back-and-forth between the judiciary and the courts persists.

On February 24, a day following the decision to stand by the denial of habeas corpus rights for prisoners at Bagram, the Obama administration released an announcement of a report on conditions at Guantánamo Bay as a first step in devising a policy for closing the detention facility. Commissioned by President Obama on his second day in office, the report, prepared by Admiral Patrick M. Walsh, concluded that conditions at Guantánamo complied with the Geneva Conventions. This despite the fact that prisoners are held in isolation up to twenty-two hours a day, that they are still naked for periods of time and that they continue to be force fed as a response to their continual hunger strikes. In the case of isolation, the effects of long-term custody can cause, as a Center for Constitutional Rights rebuttal report argues, “hallucinations, extreme anxiety, hostility, confusion and concentration problems” as well as “impaired eyesight, weight loss, and muscular atrophy.” (As a recent article in the New Yorker points out, the effects of solitary confinement in U.S. civilian prisons amount to torture.) Accordingly, many isolated prisoners have been driven not just to the point of despair but to the point of madness. The premises of the Obama administration’s argument, as evidenced in the Walsh Report, leave open the door, not only for continued abuse, but also for overlooking the inhumanity of keeping individuals in custody, largely in isolation, without charge, without trial and thus without a sense of a future in which they are either convicted or released. No amount of halal food is a substitute for a feeling of being treated fairly in a process with a clear beginning and a clear end.

The month of March heaped insult upon injury for those who had been hopeful about Obama’s detention policy. The new administration announced the deployment of 4,000 more troops to Afghanistan to add to the 17,000 already newly deployed since the inauguration. With more troops—despite assertions that many are there for civil-society-building purposes—comes the expectation that more prisoners will be taken. Although the administration’s recently released strategy for Pakistan and Afghanistan emphasizes the use of troops for nation building, there is also the directive that elements of al-Qaeda and the Taliban will have to be dismantled and, we can only assume, imprisoned. Under President Bush, plans for expanding the ability to hold prisoners in Afghanistan were adopted in the form of a $60 million expansion of Bagram’s prison facilities. The Obama administration, it seems, is poised to go through with this expansion, which will double the capacity of that prison to 1,100.

Similarly, on March 13, the administration, while jettisoning the discredited term “enemy combatant,” did not replace it with any label other than the equally vague reference to individuals who “substantially supported” the Taliban, al-Qaeda or “associated forces.” This cloudy terminology essentially seems to agree that the detainees stand legally without rights and, therefore, in a legal no-man’s-land. Critics of these developments have been quite vocal, expressing dismay that the about-face they expected from the Obama administration has not taken place. “It is deeply troubling,” Anthony Romero, executive director of the ACLU, responded,

that the Justice Department continues to use an overly broad interpretation of the laws of war that would permit military detention of individuals who were picked up far from an actual battlefield or who didn’t engage in hostilities against the United States. . . . It is critical that the administration promptly narrow the category for individuals who can be held in military detention so that the U.S. truly comports with the laws of war and rejects the unlawful detention power of the past eight years.

Of course, those who opposed the Bush administration have been unaccepting of the new policies. They are, by and large, the lawyers who, month after month for years now, have met with the detainees, have witnessed their physical and psychological deterioration, and have found one military proceeding after another fruitless and unrecognizable from the point of view of law and procedure. They have been desperate for a change of direction, desperate to tell their clients that there is a reason to live, that they may have a day in court and that, if approved for release, they may actually be set free.

IT CANNOT be denied that, on some crucial points, the Obama administration stands where its predecessor did. There is no language to define the detainees, no established court procedure by which to try them, no signs of plans to proceed with trials in Article III courts—i.e., the federal-court system. The overt signs that this new population of detainees will be treated any differently from the detainees that came before them are yet to come, though there is the assumption that this Justice Department intends to act within the law. Importantly, however, there is no real sense that the rationale for detention (which purposefully keeps prisoners outside of the court system) will come under reconsideration.

It is no surprise then that former–Bush administration officials continue to predict that the president won’t find it so easy to repudiate and replace the detainee policies of the Bush years. In an interview with the New Yorker’s Jane Mayer, former–Attorney General John Ashcroft held that “President Obama’s approach to handling terror suspects would closely mirror his own.” In Ashcroft’s words, “How will he be different? The main difference is going to be that he spells his name ‘O-B-A-M-A,’ not ‘B-U-S-H.’” Douglas Feith, under secretary of defense for policy under Bush, voiced a similar sentiment recently when he described President Obama’s allowance of one year for the closing of Guantánamo as “effectively endorsing a large part of what the Bush administration did.” While the intentions of the Obama administration seem to be aeons away from those of its predecessor, the defenders of the Bush team take the delay in visible changes as a validation of their own policies.

Moreover, if you scratch the surface, it becomes clear that there is a great continuity of personnel. With Secretary of Defense Gates as a holdover from the Bush era, it is no wonder that his Pentagon would produce a report defending conditions at Guantánamo. Nor that the presiding judge in one Guantánamo military-commission case would defy President Obama’s edict that the commissions be halted.

This continuity is not just a matter of delay due to the confirmation process. The president seems intent on—or reconciled to—preserving some continuity between the Bush administration and his own. All three special task forces that followed the executive orders of January 22 will be led by government lawyers who served in the Bush administration—Matthew Olsen for closing Guantánamo, Brad Wiegmann (along with a yet-to-be-named DOD representative) for detention policy, and J. Douglas Wilson for interrogation and transfer policies.

We too may see continuity in our treatment of prisoners. The U.S. military—deploying to Iraq and Afghanistan—still faces a military guard culled mostly from reservists whose primary training has been focused on strategic rather than operational missions. “These are infantry troops, artillery men and tank drivers, not guard forces—and only on the eve of deployment has supposedly relevant ‘just-in-time’ training been provided to them,” according to Charles Tucker, a recently retired U.S. National Guard major general. In February, Tucker witnessed the deployment of the army’s 32^nd Infantry Brigade—about 3,500 troops from the Wisconsin Army National Guard—to Iraq, all destined not for the sort of strategic-reserve duties they had primarily been trained to perform, but instead called up for more tactically oriented detention operations.

Like it or not, the Bush administration’s war on terror succeeded in moving the conversation—and the policy—about detention to a point from which it cannot be easily or fully pulled back.

Our prisoners in the war on terror still do not have an acceptable legal denomination. And though all indications are that the status the Obama administration gives them will not be one we used prior to 9/11, this is less about change than about acceptance. Even human-rights advocates and international-law experts have suggested that, in fact, the Geneva Conventions may need to be amended to grant some legally recognizable status to transnational nonstate actors engaged in armed conflict with nation-states. As Professor David Golove of the NYU School of Law notes, “The existing Geneva Convention regime did not contemplate this new kind of armed conflict and does not provide adequate agreed-upon standards to guide government in this difficult area.” If Geneva is amended, then the premise that the Bush administration embraced at the beginning—that the laws as we knew them were insufficient for the threat at hand—will come to define the new policy as well.

It is not only international law that is at stake. In the matter of setting a precedent, the applicability of domestic law is at issue as well. No one has yet gone on record with a viable solution regarding what to do with those individuals who seem to pose a danger so formidable and imminent as to preclude their release and who cannot be tried either for lack of evidence or because the evidence cannot be admitted in a court, having been extracted by torture.

THERE ARE legal, military and moral issues that would best be served by acting on the break signaled so symbolically during the first days of the new administration. President Obama’s brave stance may yet produce equally bold policies. So far, however, the forward momentum has been halted in deference to the need to rethink the old policies as well as the current reality of detentions in the war on terror. Much will hinge on whether Obama sees himself as at the beginning of the process—in terms of directives as well as rhetoric—rather than in the middle of it. The fact that the United States faces a Bagram detention situation which has the marks of the early days of Guantánamo—unknown prisoners with uncertain legal status—could be seen as an opportunity to change course. Rather than play out the hand that has been dealt, the president—having put trials, terminology and decisions on pause—could emerge from this period of reflection with a brand-new direction in mind. So far, the tone is calm, thoughtful and careful. The executive orders, the promise to review past policies and the firm timeline point toward some progress. But the bolder actions still lie ahead. Obama could refuse to tolerate any policy that deprived low-value detainees of justice. He could view with cynicism the claims that detention is equivalent to security. He could separate the CIA’s need for intelligence from the roundup of large numbers of detainees from around the world. He could, in other words, begin anew. Whether or not Obama will do so, however, remains to be seen.

Karen J. Greenberg is the executive director of the Center on Law and Security at the New York University School of Law and the author of The Least Worst Place: Guantanamo’s First 100 Days (Oxford University Press, 2009).