04.28.09

The Crimes of Guantánamo

Karen Greenberg, author of a provocative new book on the abuses at Guantánamo, talks about how Bush attorneys ignored the Geneva Conventions—and why Obama shouldn’t prosecute them.

On May 23, the Pentagon will release photographs of alleged detainee abuse at various sites in Iraq and Afghanistan—the result of a six-year legal battle led by the ACLU. These photographs are among the latest documents regarding harsh treatment of detainees to see the light of day, an appalling collection that includes the recently released Justice Department memos. In a fascinating and timely book, The Least Worst Place: Guantanamo’s First 100 Days, author Karen Greenberg describes how military leaders tried to establish a humane system for detainees during the early days of the terror war but were overruled by the Bush administration.

“The one person who could have made a difference was Colin Powell. He could have stood up and said, ‘Look, we’re about to violate international law and this will make us more vulnerable in the long run.’ ”

Greenberg, who is editor of The Torture Papers: The Road to Abu Ghraib and Terrorist Trial Report Card and executive director of the Center for Law and Security at the NYU School of Law, traveled to Guantánamo and interviewed dozens of military officials, lawyers, detainees, and others for her book. She spoke recently with The Daily Beast about the war on terror, the military role, and why the Obama administration should not rush to prosecute the Justice Department lawyers.

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The Least Worst Place: Guantanamo’s First 100 Days By Karen Greenberg 288 pages. Oxford University Press. $27.95 ()

The military officers who set up Guantánamo were told that the Geneva Conventions did not apply. What did this mean for the military?

The military is all about following the rules and when you take the rules away, it’s not just an uncomfortable zone—it is a zone in which they can’t function. They tried really hard to come up with a policy: Their attitude was, “We’re military. We go by the code.” To help themselves out, they made a bubble chart of the Geneva Conventions that showed which of the articles could be followed easily at Guantánamo. But ultimately they were thrown into a law-free zone.

You write that one of the lawyers and the general in charge of Guantánamo asked the International Committee of the Red Cross to come in, which was not what people in Washington wanted to happen.

Yes—and that was so important. They picked up the phone and called in the ICRC themselves. It turns out that to be a hero doesn’t take that much. I call it the banality of goodness. You think everybody is bad, but it turns out that some people are trying hard to do the right thing. There was so little leadership in this entire episode, and the one thing that [Brigadier General Michael] Lehnert [the Marine officer who was in charge of Guantánamo at the time] offered was leadership.

I once had an editor who told me that every story needs white hats and black hats. Lehnert is clearly the good guy in your story. And we know who the bad guys are. But what about people like [Ambassador at Large for War Crimes Issues, State Department] Pierre-Richard Prosper, who seemed to have the right idea about how prisoners should be treated and saw things starting to unfold at Guantánamo—but didn’t do anything to stop it.

Back then, Prosper and the others may not have been saying in public, “Oh, my God, this is wrong.” But his job became one in which he was to de-populate Gitmo. He was tasked with conducting shuttle diplomacy to find ways to return the detainees to their home countries or to third countries. Ultimately, the goal for the people in charge of Guantánamo now, realistically, is returning these people, and that is what Prosper has worked on over the years. Of the 800 people who have been held there, we’ve returned 560 of them, and we’ve returned them diplomatically. Prosper is the person who handled that effort. He has been really trying to get these people back home, and I wouldn’t mind if he were back in the mix and helping settle these people.

What about the black hats in your story—attorney John Yoo, who was a deputy assistant attorney general, went to see [State Department legal counsel] William H. Taft IV in his office. Taft said he could not understand why Yoo wouldn’t just follow the Geneva Conventions, especially because they were flexible enough to allow interrogators to do their jobs. The room got quiet, and Yoo said, “We have an Article 17 problem.”

It’s a pivotal moment. Article 17 says, “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war,” and John Yoo and the others did not want to have to agree to that. Taft understood what was going on, and he fought back. His legal team wrote a memo that was incredibly strong, saying that the legal opinion from the Justice Department about the detainees was “seriously flawed” and “fundamentally inaccurate”—basically, it was saying, “This is outrageous lawyering.”

Still, for most of the people who were involved, it’s not like whether they did or didn’t do something would have made much of a difference. The one person who could have made a difference was Colin Powell. He was the secretary of State and a four-star general. He could have stood up and said, “Look, we’re about to violate international law and this will make us more vulnerable in the long run,” and it would have changed everything. At any point, he could have said, “This is not something I’m willing to participate in.” But he didn’t.

On January 15, 2002, John Yoo and David Addington, who was the legal counsel to Dick Cheney, visited the prison. They were the ones who made the legal arguments for the harsh interrogation techniques, and now they were going to visit the “petting zoo,” as you call the place.

The Petting Zoo— that’s what I wanted to use as a title for my book. It captures the way that Guantánamo quickly became a dehumanized situation in which you had human beings who were being treated like animals and were kept in cages. And then you had these VIPs come and visit the place so they could see what things were like. It was window dressing, a cosmetic front to a nefarious situation. Good food, prayer beads—yes. But legal rights, no.

What do you think should happen to those guys? Should they be prosecuted?

I think at the very least that the people who wrote those memos should be disbarred. Whether or not you need to prosecute—that might be a decision for later. Right now there is a lot of anger, and it’s justifiable. Also, we—I—feel guilty about what took place at Guantánamo. These things happened in our name. So the lust for prosecution is more out of anger and wanting to lash out, and the purpose of the law is to reason things through.

So you think we need more to find out more about what happened before we prosecute—we need more evidence.

We may have enough evidence, but it takes a while to understand all of it. The whole problem in the war on terror has been that there was no time for reflection. It’s just been react, react, react. We need to reflect and then we can make a decision. I’m as angry about this policy as anybody. But we need to reflect on what happened first.

In your book, Taft says, “Why lawyers, of all people, should want to establish the point that such a lawless regime could legally even exist, even as a theoretical matter, much less recommend that one actually be created, is, I confess, beyond me.” Why did they create a place without law—I mean, they’re lawyers.

They saw the law as limiting their ability to protect the nation. They wanted carte blanche to make the country safe and the miscalculation of this administration was to think that you could substitute bullying for intelligence and knowledge. All they did was show how weak you become when you are a bully. They bullied the law, and they bullied the power structure and the structure of civilized society.

And they won.

They did win. They won because there was a willful blindness by us and by people in the government. And they won because they played the fear card magnificently. They said that these people being taken to Guantánamo could be tied up every which way and yet they were still capable of gnawing through the hydraulic cord in the back of a C-17 and then bring down the plane. The made it seem as though the detainees had no limitations. The truth is that 9/11 happened on the Bush administration’s watch and so it was deep in their psychology to say that the people at Guantánamo were the worst thing ever. Those people had to have superhuman strength. Otherwise, it would not have been possible. But, really, the terrorists are not superheroes. We just dropped the ball.

Things are different now.

Yes. Thinking is back on the American agenda, and it is a big change. You know, bullying is the opposite of thinking. And it turns out we’re not so good at bullying. If you have to waterboard someone 183 times, you have to figure that it’s not working very well.

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Tara McKelvey, a senior editor at The American Prospect and a frequent contributor to The New York Times Book Review, is the author of Monstering: Inside America’s Policy of Secret Interrogations and Torture in the Terror War (Basic Books).