Angry Planet - Why closing Gitmo isn't an open-and-shut case

Episode Date: February 25, 2016

President Barack Obama laid out a plan to close the notorious Guantanamo Bay prison this week. Even if it were to close by the time Obama leaves office, it will have been open for 15 years. So, why is the prison still open, and what would it take to close it? And how important is it, really, to close it?This week on War College, we talk to Reuters' own David Rohde. He's written extensively about Guantanamo and he also knows captivity from the other side, as a prisoner of the Taliban for seven months.Support this show http://supporter.acast.com/warcollege. Hosted on Acast. See acast.com/privacy for more information.

Love this podcast? Support this show through the ACAST supporter feature. It's up to you how much you give, and there's no regular commitment. Just click the link in the show description to support now. The opinions expressed in this podcast are those of the participants, not of Reuters' news. Yeah, when I was held in captivity by the Taliban, they would cite Guantanamo as an example of sort of American hypocrisy. The commanders in particular that were holding me were sort of delusional. all these conspiracy theories. They trained younger guards to be suicide bombers. I don't, you know,

have any sympathy towards my captors, but it was true that they cited Guantanamo as one justification for why they were fighting the United States. I know we promised you an episode on the state of NATO this week, but sometimes news overtakes a weekly podcast. With President Obama announcing a new plan to empty the prison at Guantanamo Bay, it seemed like the perfect. time to talk to Reuters' own David Rowe. David has written about Guantanamo and he was also held by the Taliban for seven months in 2008. This week on War College, we'll be looking at who's left at the prison and if the military trials are moving forward at all. And we'll also talk about how Guantanamo affects everything the United States is trying to accomplish around

the world. You're listening to War College, a weekly discussion of a world in conflict focusing on the stories behind the front lines. Here's your host, Jason Fields. Hello and welcome to War College. I'm Reuters opinion editor Jason Fields. And I'm Matthew Galt, contributing editor at War is Boring. Today we have David Rode with us. David is a two-time Pulitzer Prize winning reporter. There's actually not a lot of people in journalism who can say that. He uncovered the massacre at Shrebernazza during the war with Bosnia and also was in Afghanistan and unfortunately he was in Pakistan as well after one of his trips he ended up captured by the Taliban and held for seven months. David has actually now been at Reuters for the last couple of years working as columnist and investigative reporter.

And he's done a series of stories on Guantanamo Bay. And Guantanamo Bay is what we're here to talk about today. So welcome, David. Thank you. Thanks for having me. I was hoping, you know, in light of President Obama's effort to close Guantanamo Bay and his new statement trying again to get Congress to take action, would you mind, David, if you just started from the beginning, sort of tell us what Guantanamo Bay is, when it started, and its status now? Well, it was, the Guantanamo Bay was opened by the Bush administration soon after the U.S. invaded Afghanistan. and it was really an effort to not have to apply the Geneva Conventions to combatants in Afghanistan

to the Taliban and al-Qaeda. It was, you know, at its peak, it had about 800 prisoners in it during President Bush's first term. And then, you know, not as much written about this, but the Bush administration released, I think, roughly 500 prisoners during his second term. And he used a very different approach when the U.S. invaded Iraq. They did apply the Geneva Conventions two prisoners that the U.S. captured in Iraq, and there are no Iraqis held in Guantanamo. So it's sort of an artifact from the very first three years after the 9-11 attacks when there was this view that, you know, the laws of war shouldn't apply to terrorists, and there had to be, you know, aggressive and these extreme and human rights groups called them, you know, torture,

these interrogation techniques and also to hold people indefinitely. You know, we're left with it today. David, why did they pick that specific location? They didn't want American law, you know, to apply or the laws of war to these prisoners. So at first they said that, you know, the U.S. court system had no oversight whatsoever of Guantanamo, that basically the administration could do what it pleased with these prisoners. There was sort of fierce resistance put up by the defense bar and lots of other legal groups and human rights groups in the U.S. and in the end, Bush law The U.S. Supreme Court did rule that the U.S. judicial system did have oversight over Guantanamo. There were some, you know, basic steps forward in terms of detainees there having lawyers.

But after that initial victory, everything sort of became stuck in a legal quagmire. There was no requirements for sort of any kind of speedy trial. So the vast majority of people that are there have been held for anywhere from 12 to 13 to 14 years without trial. least for a little while, there were tribunals that actually, at least, did they start and then sort of stop? Yeah, it's a, it's a perfect example of the problem of Guantanamo itself. So at first, the Bush administration in this sort of reform period when they were trying to empty the camp, and they were, they started to have military trials. When Obama came into office, he then tried to reform the military trials. And we did a story on this earlier this year. The Obama reformed

forms essentially have failed. The one sort of large trial that's going on is the trial of a half dozen men accused of involvement in the 9-11 attacks. Their trial is still stuck in pretrial hearings. It's been 14 years since the attacks. There's all kinds of problems where military law doesn't really apply that well in some ways to terrorist attacks. Holding these trials in Guantanamo is sort of unprecedented, so there's no law to guide a lot of the basic decision-making about what is proper evidence and what's not. And again, the defense lawyers I mentioned earlier have sort of, some of them are top-notch death penalty defense lawyers from the U.S., you know, very openly stated politically liberal, and they've kind of tied these courts in knots. So many people believe that if the 9-11

defendants had been tried in federal court, they probably would have been convicted and sentenced to death. It's not clear. if an execution would have happened now, but the military trial efforts sort of been a complete failure, and it's not clear if those trials are ever going to be able to start just because there's so many legal problems. But those are the stakes. People are on trial for their lives. We're not talking about prison terms. Is that right? Yes, they're all facing the death penalty. There's 10 that are in different judicial processes in the military courts in Guantanamo, but it's really those six defendants who

face the death penalty. But it's, without going into too much detail, it's just, it turned out that trying terrorists in military courts was far more complicated than I think members of the Bush administration expected. The Obama administration thought they could fix the military trials, but that has sort of failed as well. And it's amazing that all these years have passed and they're still sitting there in these endless hearings. Who are the people that are still there, David, and how many are there? There are 91 detainees still in Guantanamo Bay. 35 of them have been cleared for release to third countries.

They expect those 35 to be transferred. That would leave about 56 prisoners. And the real question is that they're still reviewing some of the 56 for transfer, and they expect there to be this sort of final number of anywhere from, you know, 40 to 50 detainees. that even the Obama administration says, are they're too dangerous to transfer out to a third country, but the U.S. doesn't really have evidence it could use in a military trial or any court to convict them of a criminal offense. But at the same time, again, the Obama administration feels they're too dangerous to release. And so that's what this debate is about what happens to those 40 to 50 prisoners that are left in Guantanamo.

Is it worth keeping them in Guantanamo or should they be brought to the U.S.? And when you say brought to the U.S., it's not for trial necessarily. It's to put them into onshore prisons. Is that right? Yeah, the debate is about putting them into either a military prison, maybe Fort Leavenworth, Kansas, or the Navy Brig in Charleston, South Carolina. There's a Supermax prison in Florence, Colorado, you know, where several convicted terrorists are already held.

There's talk about putting them. there, but there's just adamant opposition from members of Congress to transferring any of these prisoners from Guantanamo to the U.S. Is that because they fear there'd be an attack in the prisons in their districts if the prisoners removed? Yes, I mean, look, this is about politics, and politics is part of everything here in Washington, and it's very clear that most Americans, according to opinion polls, don't want these prisoners transferred to the United States. You know, you can blame who you want. Maybe President Obama should

have made his case more effectively. But it's sort of an easy political win to oppose sending these prisoners into the United States. Today, Michael Bennett, he's the Democratic Center from Colorado, you know, and obviously a member of the president's party. He said he supports the closing of Guantanamo, but he doesn't want any Guantanamo detainees brought into Colorado, brought to this sort of supermax federal prison in Florence, Colorado, because it's a sort of devastating political blow. Any member of Congress, you know, seen supporting a transfer of these prisoners into their district will be immediately attacked in the next election cycle for bringing terrorists, you know, into their district that could endanger people.

David, in your opinion, how legitimate are these concerns about these guys going back to the battlefield and being a threat going forward. Well, so there's a separate concern about when they are transferred to other countries, how high the recidivism rate will be. The highest recidivism rate was when roughly between 25 and 30 percent, and that was under actually the George W. Bush administration when they sent roughly 500 prisoners home in his second term. Congress has mandated that U.S. intelligence agencies track these prisoners and see how many

of them rejoined the fight. The number, the percentage is much lower under the Obama administration. It's roughly at around 10%. Those are lower recidivism numbers than you see from the typical kind of prison population in the United States, people held for just crimes in the United States. And supporters of these transfers say you're going to have some recidivists, you know, and if we applied this sort of extremely high bar of no recidivism at all, you know, if you did the same thing in an American prison, you know. have no one ever going out on parole, that it's just unrealistic. And at some point, you have to take a certain amount of risk, you know,

to get the benefit of emptying Guantanamo, closing it, and hopefully, you know, eliminating its use as a propaganda tool by jihadists. You were out in Afghanistan, and you know firsthand how people in places like Afghanistan feel about Guantanamo. And I was hoping you could just sort of talk to us a little bit about that. Yeah, when I was held, in captivity by the Taliban, they would cite Guantanamo as an example of sort of American hypocrisy. They, you know, the U.S. holds itself up as, you know, that were ruled in a clear system of law

and that, you know, people go on trial and they would get fair trial. So they cite the fact that, you know, hundreds of people, now it's down in 91, have been held for as long as 14 years without trial, as showing that sort of that it's all hypocrisy that the U.S. doesn't really abide. by the ideals it says it's defending around the world. And I want to be honest that these, the commanders in particular that were holding me were sort of delusional. They believed all these conspiracy theories. They trained younger guards to be suicide bombers.

I don't, you know, have any sympathy towards my captors. I think they'll come up with other excuses to use as recruitment tools. But it was true that they, you know, cited Guantan. is one justification for why they were fighting the United States. What year was that? It was 2008 into 2009. So you're thinking it's propaganda, but it's propaganda that may have an impact. Do you think it's actually had made things any more difficult for U.S. troops operating in Afghanistan

or other places in the Muslim world? I think that it's used as a tool to recruit. young men to join these sort of jihadist groups. You know, I don't think closing of Guantanamo will eliminate jihadist groups. It's not going to end this long and very poorly defined sort of struggle wherein at this point in terms of ISIS and the Taliban and other militant groups. But, you know, the administration is correct as far as I could tell, and that it is, it's a recruiting tool. That's very true. David, what about America's relationship with its allies? Has Guantanamo Bay hurt?

You know, how does it affect that? Well, I think Guantanamo has sort of hurt the U.S. is standing, particularly with, you know, European allies. It's, again, this sort of, I guess it's this real dichotomy. American public opinion supports Guantanamo. There's no or very, very little sympathy for these, you know, men that have been held there for 14 years and not tried. Whereas in Europe, they just sort of see it as this major violation of basic, you know, American law. and the American Constitution. And that's why you have various allies around the world,

including European countries, you know, taking these prisoners as Obama has tried to transfer them out. And it's, again, it's a, they feel it, you know, it has hurt American credibility. There was an expectation that Obama would be able to do this and do it very quickly, but, and I think surprise among U.S. allies and other countries that he was unable to carry this out. But he was actually trying to carry it out.

I think when I had actually lost track of this, to be honest, and along with, I think, a lot of other people thought that Obama had stopped trying to close it. But it sounds like that's not entirely the case. How sincere is the Obama administration? How sincere have they been for the last seven years in trying to close this? So human rights groups and defense lawyers have been actually very critical of President Obama. They say it's been a really inconsistent effort. effort. I had one government official tell me that the Obama administration, the White House in particular, sort of took its foot off the gas when it came to closing Guantanamo. They would focus on it intermittently. And one thing they cited in comparison was that when it came to the Iran nuclear deal, you know, the administration went into sort of a full court press, pushed back very hard against criticism from members of Congress and got that through. And that there's a sense that, you know, The president made a calculation.

He could only achieve a certain amount of things in the last few years of his presidency, and that the political cost of sort of forcing through Guantanamo's closure would be very high, and he decided that other things such as the Iran deal were more important. One separate criticism is that very early in the Obama administration, he came in on his first day in office, he signed an executive order saying he was going to close Guantanamo, And I had one former government officials say that at that moment what the president could have done, there was no opposition in Congress. There were no laws passed by Congress then, borrowing him from moving prisoners into the United States,

that what Obama should have done in his first three or four months in office was put some of these most serious cases, the roughly 50 or so people that, you know, wouldn't be released, put them on a plane, and flown them in the spring of 2009 into Charleston, South Carolina, and put them in the brig there. And he had the executive authority to do that. President Bush opened Guantanamo without a law from Congress, and at that point, President Obama could have closed Guantanamo just using his own powers. But he failed to act decisively at that point. Instead, he did a review of every one of the roughly 200 to 300 prisoners that. that were there when he took office, and that sort of took time over his first year in office.

And during that first year, Republican opposition sort of mounted and he missed the window. Do we have any idea how differently people at Guantanamo prisoners are treated at Guantanamo on a day-to-day basis than they would be in something like a Supermax facility? I don't know. I think it depends on the level of detention for the Guantanamo prisoners. I would say that a prisoner in Guantanamo who's sort of cooperative and not deemed as resisting or threatening guards spends much more time in sort of communal areas with other prisoners compared to prisoners in a Supermax. Supermax prisoners that are in isolation, I believe, spend 23 hours a day confined to their own cell. There are some prisoners in Guantanamo that are held, I think, under those conditions,

depending on, you know, if they're being punished or not. But Jokar Sarnayev, Zarkarious Musawi, who was the 19th hijacker, there are convicted terrorists that have been held in federal prisons in the United States for more than a decade. None of them have broken out or come even close to breaking out. And this is where supporters of closing, Guantanamo say that this, you know, the argument is ridiculous, that these prisoners can be held in the United States in these facilities. It's not a threat to the American population. and it's, you know, and now's the time to move them here.

I'd also like to point out that that brig in Charleston, South Carolina, has housed three terror suspects, one of them an al-Qaeda associate. So there is precedent. Again, this is about politics, and the president has sort of failed to win the public argument about Guantanamo. You know, I'm not getting into who's right or wrong in terms of what should happen in Guantanamo, but Republicans have, you know, found a way. to very successfully, you know, paint this as an issue where the president is going to endanger

the American people by bringing these extremely dangerous people into the United States. And the White House and President Obama have failed to point out there already are many convicted terrorists held in the United States. And they, you know, so far they have not come close to posing a threat to people, you know, near these prisons where they're held on U.S. soil. David, something else I wanted to ask. Is there any kind of a situation? historical precedent for something like Guantanamo Bay, especially in America. Has there ever been black-site prisons like this? The series of court victories for the defense lawyers and the human rights groups resulted in

like the International Committee of the Red Cross having access to Guantanamo. And so it's not the same as a black site now. But there were military, there hasn't been anything like Guantanamo. And part of this is this problem and this unresolved debate about whether, you know, United States is at war, and is this a war or not? Some conservatives argue that Guantanamo Bay should be open, but it should be described as a prisoner of war camp. And when the United States sort of, you know, ceased having hostilities with the Taliban, you know, you would close the camp just as you closed, you know, prisoner of war camps that held hundreds of thousands of German and Japanese prisoners inside the

United States during World War II. One of the ironies is that the United States, you know, the United States actually officially ended combat operations in Afghanistan last year. Lawyers for some of the Taliban or accused Taliban members in Guantanamo went to judges and said the conflict has ended for the United States in Afghanistan. You know, U.S. forces are no longer engaged in combat operations, release my client from Guantanamo, but Obama administration lawyers, you know, argued no. They should still be held there. So it's a very strange hybrid. It's nothing like it exists before. It's not a prisoner of war camp, but it's not a traditional federal prison. And that's the problem. There sort of aren't international laws or U.S. criminal laws that apply there. And it's really just sort of a

Pandora's box legally. One thing that's really surprised me, or I guess I just don't understand, is how the U.S. can be so sure as to what all of these people are held at Guantanamo have done and yet be seemingly so far from being able to prove it in some sort of court. Is it really that hard to find someone guilty? It just seems like there's a real disconnect. Well, one of the odd things with trying to do a military trial of terrorists is that, you know, in a military trial, you're guilty under the international laws of war for violating the Geneva Conventions. The Geneva Conventions don't include charges like conspiracy, which you would be able to use in a federal courtroom and is used often in terrorism cases. The laws of war don't really know how to deal with the act

of flying a jetliner into a skyscraper. The laws of war are about not shooting a prisoner when they, you know, surrender. So this is the problem. And then to be fair to the government, there's been an intentional effort by defense lawyers to, again, tie the military trials and knots and not let them progress, not let there be a completed trial

as a way to sort of show the failure of Guantanamo and the failure of these military trials. And the defense lawyers have succeeded. They file motion after motion, Military judges are, you know, they contest everything, and it's just become this unbelievably slow process to, you know, even start the trial of the men accused of helping carry out the 9-11 attacks. And is that to the benefit of their clients, are stall tactics what they're looking for? Yes, I mean, at least in the 9-11 trial, they're facing the death penalty. So, you know, the lawyers will say they're just doing their job.

They're zealously representing their clients, but private. they'll say, or legally honest, will say that it's an intentional delay tactic. And then the other problem is there's such a, this sort of focus on secrecy and the danger of these accused men being able to speak publicly, that it's incredibly cumbersome logistically. When they have hearings in these military trials, they literally have to put on a jetliner from the U.S., the military judge, the prosecutor team, the defense team, a bunch of reporters, a bunch of court workers, fly them all down to Guantanamo, you know, have these very brief hearings in courtrooms that are, you know, equipped with these switches that can turn off the audio at any time.

There's a military officer that's charged with stopping any one of the defendants from somehow communicating a secret message out to al-Qaeda. Most of these men have not had contact with any kind of terrorist group in more than a decade. So defense lawyer has questioned what secret message they actually could be conveying a decade after, you know, being, you know, forcibly removed from being active members of these terrorist groups. It sounds like to me there needs to be some sort of third way here. It seems like military tribunals aren't working and civilian justice isn't working. Do we need some sort of new legal system to deal with these kinds of, to deal with prosecuting these kinds of conflicts and the people

that are our enemies in these kinds of conflicts? That's a great question. And this is this core issue. Is this a war on terror? You know, should these guys be held as terrorists and not have any rights in terms of being put on trial? You know, the Obama administration argues that this is a criminal problem, that these are criminal groups. And the federal court system, you know, has convicted many terrorists, you know, sentenced them to death. Joe Karsarayev being the most recent example of one of the Boston Marathon bombers. and that they should be tried in federal court, but Republicans argue that they don't deserve those protections.

They shouldn't be tried in federal court, and it's almost a too lenient system. Guantanamo and the fact that the military trials there are paralyzed, the fact that the closure is blocked, you know, it's just a perfect analogy. It's a microcosm of the total partisan discord and paralysis we have about how do you deal? with terrorism, you know, how do you deal with these threats? And so the fact that there's

still these 91 men sitting there and there's complete disagreement about what to do with them and what to do with the facility just reflects the larger, utter disagreement here in Washington about what to do about terrorism. So I guess the long and the short of it is that there isn't really a resolution in sight. I mean, there's no kind of timeline for actually closing Guantanamo no new timeline for trying any of these people or for necessarily shipping them to other countries. Yeah, I don't think – so the sense here in Washington is that this plan is sort of dead on arrival on Capitol Hill. You know, it's a presidential election season. Republicans aren't going to give an inch. And then President Obama, he could unilaterally put these, you know, the remaining prisoners on a plane and fly them to the United States and have a huge fight in Washington over whether that's, you know, legal or not.

President Obama is not going to do that until after the presidential election. If he did such a thing, if he unilaterally closed, it could really hurt the Democratic nominee. So the next thing to watch is what happens between November 2016 and the arrival of a new president in January 2017? Would Obama potentially unilaterally close the prison at that point? Some of his aides have said that they're considering those options in the White House. the president says he still wants to work out a bipartisan compromise. Most likely, I think the next president will take office in January 2017. There'll be, you know, 40 to 50 prisoners sitting in Guantanamo,

and that president will have to decide what to do about the facility. Well, thank you very much, David. Really appreciate you taking the time. Thank you so much. Thanks. Thanks for listening to this week's show. Next week, we'll give you the podcast we've presented. promised on NATO.

The problem especially in the Baltics and in Poland is you have countries that have a very nasty historical habit of poofing in and out of existence. We appreciate any and all ratings on iTunes, though we appreciate the favorable ones much, much more. Also, you can check out Keeping Score, another Reuters podcast on iTunes. It's in a very different vein for Moore College, but if you're looking for a change, you can't do better for insight into the business of sports. More from us at War College next week.