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March|April 2005
Pop Con By David A. Strauss
Lawyers, Unite By Scott Cummings and Ingrid Eagly
Elsewhere
America the Mercurial By Michael Ignatieff
Asking for Trouble By Phillip Carter

Asking for Trouble

Why the counterterrorism interrogations at Guantánamo Bay have been counterproductive.

By Phillip Carter

IN THE THREE YEARS SINCE THE UNITED STATES opened its Guantánamo Bay, Cuba, prison for suspected terrorists, the prison has been described as everything from an "American gulag" to a "legal black hole." Significant moral outrage has been expressed about policies employed there—indefinite detention, arbitrary legal process, and coercive interrogations—policies that were until recently considered beneath the United States and more appropriate to a third world dictatorship. Despite the thousands of U.S. military personnel stationed there, "Gitmo" has become a most un-American place.

In support of an argument that U.S. operations at Guantánamo Bay have both run amok and become counterproductive, the British journalist David Rose offers a substantial body of reporting in his concise book, Guantánamo. He draws on Vanity Fair interviews conducted with several released detainees, most notably Shafiq Rasul, the Briton at the center of the June 2004 case in which the U.S. Supreme Court decided that the president did not have unfettered and unreviewable power to detain enemy combatants in a foreign locale like Gitmo. He also makes expert use of published and unpublished government documents to show, to an extent unknown before, that many inside the Defense Department catalogued and questioned the problems at Gitmo. Since the book was published late in the fall of 2004, even more information has come to light confirming Rose's findings.

Everyone now knows about the egregious abuses depicted in the photos at Abu Ghraib, abuses that appear to have resulted from sadistic behavior by the soldiers on the "night shift" there. But Rose provides much valuable new information about the extent of the authorized interrogation practices at Guantánamo, and how those practices crossed the line into sadism as well. Detainees were frequently put into stress positions such as the "short shackle," where their arms and feet were bound with a short chain, forcing them to bend over in painful crouches. Many detainees at Gitmo were also "ERFed"—a euphemism for the severe beatings issued by the U.S. military's Extreme Reaction Force in response to slight disciplinary infractions, such as having an extra water cup in a cell.

Though the description of interrogation techniques is useful, Guantánamo is most valuable for its eloquent dissection of the methods used by the United States to gather intelligence from detainees. Rose writes that Guantánamo Bay has become the focal point of the U.S. effort to gather intelligence about al Qaeda, because of severe shortcomings in the intelligence community's human intelligence ("HUMINT") capabilities. As Seymour Hersh and others have written, it is likely that the United States did not have a single agent inside an al Qaeda cell on September 11, and that it has made little headway since. The U.S. government is highly adept with technical means of gathering intelligence, like satellites and sophisticated listening devices. Unfortunately, the most important intelligence about al Qaeda cannot be gathered via these means—it is stored inside the minds of terror cell members, or contained on laptops deliberately not connected to the Internet so as to avoid the prowling eyes of the National Security Agency.

Faced with the need to gather intelligence about al Qaeda's plans and intentions, yet hobbled by its lack of HUMINT, the Bush Administration chose to use interrogations of detainees to learn what it could about the global terror network. According to the Administration, the need to harvest intelligence from detainees by whatever means trumped everything else, including the law. Rose quotes a notorious memo from then-White House counsel Alberto Gonzales to President Bush on January 25, 2002:
The nature of the new war places a high premium on factors such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians, and the need to try terrorists for war crimes such as wantonly killing civilians. . . . In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions. . . .
This policy has not worked well, Rose writes. As an initial matter, it required the effective sorting of detainees into high-value, low-value, and no-value (or innocent). You can reasonably argue for the application of coercive interrogation measures, and possibly even torture, to members of the first group. But to Rose, the system for finding and classifying the detainees was inherently flawed. The United States' policy of paying as much as $5,000 for each detainee led to the capture of many innocents by Afghan rebels seeking a bounty. Compounding that problem, the American military intelligence units in Afghanistan charged with sorting detainees had little knowledge of relevant cultures or languages to help them deal with men captured there, let alone any past experience in conducting field interviews with battlefield prisoners. To this day, the Army has an acute shortage of soldiers capable of speaking Arabic, Farsi, Pashto, Urdu, and other languages critical for the war on terrorism. The average 25-year-old soldier doing the screenings was woefully ill-equipped to make an accurate decision regarding a particular detainee's status or intelligence value. Most decisions erred on the side of detention, since no one was rewarded for letting prisoners go.

Despite statements from Secretary of Defense Donald Rumsfeld that only the "worst of the worst" would be held at Guantánamo Bay, the facts indicate otherwise. Citing senior officials with access to intelligence from Gitmo, Rose writes that less than one-third of the detainee population at Gitmo had any real intelligence value. Other reports have indicated that as few as 50 of the detainees at Gitmo, out of roughly 600, had intelligence value. The rest might be Taliban or al Qaeda foot soldiers, like Salim Ahmed Hamdan, who is scheduled to be tried along with three others by military commission in the near future. Or they were unlucky enough to be at the wrong place at the wrong time, like Rasul and Asif Iqbal, who were swept up by anti-Taliban warlords and later sold into U.S. captivity.

EVEN IF THE U.S. HAD BEEN ABLE TO SORT THROUGH DETAINEES to find those worthy of coercive interrogation, Rose argues that the government likely would not have achieved its desired results. Rose cites compelling data that the continued use of stress positions, sleep deprivation, and diet modification will break a detainee's will eventually, regardless of the individual's fortitude. However, he also points out that the most learned researchers in the field have found a stunning rate of false positives—false confessions or statements—from detainees who are willing to say anything to stop the short-term pain they are forced to endure. Studies of coercive questioning in a number of contexts, including Soviet KGB interrogations and U.S. law enforcement questioning, all corroborate this assertion.

Even when you can effectively separate the dangerous from the innocent, coercive interrogations of detainees are likely to produce misleading information. It's possible to argue in the abstract that the policy of detaining and interrogating battlefield prisoners from Afghanistan was wise and prudent given the need to gather intelligence about al Qaeda. But Rose musters a stronger counterargument that the mechanics of this policy have produced worthless and probably inaccurate intelligence. Only the most seasoned interrogators, armed with volumes of corroborating data, can sort the good confessions from the bad. According to Rose, the United States had neither, and was thus unable to verify much of what it learned at Guantánamo.

The release of people assumed to be innocent hasn't gone well either. Recent reports indicate that up to 25 of the 202 prisoners freed from Guantánamo have rejoined the fight in Afghanistan as Taliban or al Qaeda insurgents. It's not clear whether these men were combatants when they arrived at Gitmo, and improperly screened, or whether their experiences at Gitmo turned them into enemies of America. In Guantánamo Rose makes the case that both are very possible.

Our country has paid millions of dollars to build and staff its prison at Guantánamo Bay, but it has paid far more in moral and political capital. By descending to the same illegitimate level as other nations and groups that flout the rule of law, we have ceded key terrain to our enemies in the moral and legal war on terrorism. America may well need to harvest human intelligence through interrogations, and it may also need to detain captured al Qaeda members for the duration of the war on terror, or of their natural lives—whichever comes first. However, in choosing methods that are both unlawful and ineffective, we have de-legitimized our pursuit of this intelligence. And as Rose persuasively argues in Guantánamo, this loss of legitimacy has done grave harm to our efforts to win the war on terror.

Phillip Carter is a former Army officer who practices government contracts and international law with McKenna Long & Aldridge in Los Angeles.

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