The first executive order signed by President Obama upon taking office last year was a pledge to close the detention center at Guantanamo Bay within twelve months. It was a deliberately symbolic decision, meant to signal an end to what he and many others considered the legal excesses of the previous administration. At a signing ceremony at the White House, Obama called for America’s return to the “moral high ground” in the war on terrorism. But the year has now passed and Guantanamo remains open. Signing the order turned out to be the easy part. Where to relocate the remaining detainees, and in what forum to try them, is a far more politically fraught proposition. The administration has promised a new detainee policy that respects international norms of prisoner treatment and, perhaps even more challenging, a just forum for existing detainees, many of whom are known to have been tortured. But no president has ever ceded executive power accrued by his predecessors; and, indeed, despite his good intentions, Obama has already announced that some of the most controversial actions of the previous era, such as renditions and indefinite detentions (now recast as “prolonged detention”), will remain in place.
How Obama balances legal expediency against human rights may well be the most significant legacy of his tenure. In a sense, however, the choices he faces are not altogether different from those President George W. Bush was forced to make. In the weeks and months that followed the attacks of September 11, 2001, legal expediency was weighed against human rights in countless decisions, many of which found their first articulation in the policies that would come to govern the inmates at Guantanamo Bay. As we now well know, it was the path of expediency that ultimately won out in most cases. But as Karen Greenberg’s chronicle of the first 100 days of Guantanamo shows, even at this early juncture there was a better way.
The Least Worst Place, which at times reads almost as an oral history told largely through the eyes of officers on the ground, tells of the transformation of a sleepy U.S. military base into a detention camp that would come to house what the Bush administration presented as the world’s most fearsome terrorists. By the fall of 2001, U.S. troops in Afghanistan had captured scores of prisoners, who were being held in ad hoc detention facilities. With winter approaching and no adequate place to hold the detainees, the administration realized that a human rights disaster loomed. The detainees would have to go somewhere. Guantanamo was chosen—not for some geographic strategic advantage, but because it was determined to be a legal void in which the U.S. could operate with impunity.
General Michael Lehnert, Guantanamo’s commanding officer, was given just three weeks to construct the makeshift detention center that would come to be known as Camp X-Ray. Yet even as the first group of prisoners was en route to the base, Lehnert was denied firm guidance on a key aspect of his mission: how to treat the detainees. The question was at that moment the subject of fierce wrangling in Washington. The debate over how to classify detainees and what rights to give or deny them was resolved, of course, in favor of the now infamous memo drafted by two attorneys from the Office of Legal Counsel, John Yoo and Robert Delahunty, who determined that members of the Taliban and al-Qaeda had no legal status. These men were not “prisoners of war” but, in a Machiavellian semantic parse, “enemy combatants.” Therefore, the authors concluded, “neither the federal War Crimes Act nor the Geneva Conventions would apply to the detention conditions at Guantanamo Bay, Cuba.”
For officers on the ground at Guantanamo, this did little to clarify how they should proceed. Just before the detainees arrived, the best Lehnert was able to extract was the vague guidance that he was to be “consistent with the Geneva Conventions, but should not feel bound by them” (p. 49). Greenberg’s vivid account of the unfolding events shows the twisted logic through which legal arguments were crafted to justify actions that had effectively already been authorized. As she notes, “administration lawyers had formulated a policy embracing limbo as its primary characteristic. There was to be no policy. That was the policy” (p. 64). The intentional fudging was clearly Washington’s legal shield for when the inevitable questions about detainee treatment arose, but it imposed a terrible ethical dilemma on military servicemen who were accustomed to following direct orders and being bound by strictly articulated codes of conduct.
Lehnert and his fellow officers chose to interpret the directives with an eye toward respecting the Geneva Conventions. Over the objections of the Pentagon they invited the International Committee of the Red Cross (ICRC) to come and observe the detention center, a move that proved enormously beneficial, as ICRC members were the first to break the language barrier with the detainees, getting vital information on their home countries and their medical conditions. The officers also hired a Muslim chaplain to lead prayers with the detainees and brought in personnel with experience in guarding prisoners. As a result they built a rapport with the detainees and began to elicit details of their backgrounds, and even peacefully negotiated an end to a hunger strike. But it soon became clear that Washington was less interested in running a detention camp than an intelligencegathering operation. Secretary of Defense Donald Rumsfeld believed the detainees possessed valuable tactical intelligence that could forestall a future attack, and he demanded that such information be ascertained. What emerged were two vying camps: the facility run by Lehnert, which sought to treat the detainees humanely, and a full-service interrogation center that would use any means necessary to extract information.
When it became clear that the camp that Lehnert was running was not what the powers that be had in mind, he was replaced with a new commander who was more than willing to do the administration’s bidding. Major General Michael Dunlavey wanted to “have men wearing black hoods conduct frightening, intimidating raids on the cells, dragging away one or more of the detainees” (p. 172), and to comb through detainee psychological records to see “how the psychiatrists could get better information from the detainees” (p. 213). By then the military had already announced the formation of tribunals, which promised a fair hearing, but which also explicitly stated that even those detainees who were acquitted could still be held indefinitely if they were considered a threat to national security.
It is tempting to read Greenberg’s account as a hero’s tale of a small cadre of officers who stood up to their superiors and cast aside the strictures of the chain of command to do what they believed was right. But Lehnert and the soldiers under him were soon rotated to different assignments, and Greenberg, whose account ends with their departure, does not leave the impression they did much to sound the alarm publicly or within their own ranks. Her intimate access to her subjects yields a detailed snapshot from the perspective of her protagonists, but it is ultimately one piece of a far more complex tableau. The lesson of the first 100 days of Guantanamo is not one of how truth and justice triumphed, but how efficiently a bureaucratic machine on a war footing circumvented ethical norms and suppressed dissent. In principle, any soldier can refuse an order if it violates the Geneva Conventions. Despite the twisted legal justifications they were handed, Lehnert and his fellow officers must have known that as soon as they left Guantanamo the Conventions would be violated. Did they have an ethical obligation to do more?
As a journalist, I feel keenly the hypocrisy of judging individuals who were on the ground under enormously difficult circumstances. In the fevered post-9/11 atmosphere the media was mostly passive, and in many ways still fails to hold the government to account. All the more important then that we remember, even as Guantanamo prepares to close, that although the treatment of the detainees was justified on the grounds that they were “the worst of the worst,” many ultimately turned out to be innocent of wrongdoing—picked up as a result of U.S. bounties, or merely in the wrong place at the wrong time, swept up in the military actions on the ground. And while Guantanamo would later be home to Khalid Sheikh Mohammed and a host of highlevel suspects, the legal legacy, eight years later, is a mere three convictions, while over 500 detainees have been released without charge.
Despite all this, with revelations of abuses elsewhere—in Abu Ghraib, at secret CIA detention centers, and in foreign intelligence-run prisons—Guantanamo nevertheless turned out to be, as the military families living on the base dubbed it, “the least worst place.” This is the damning snapshot that should give us the courage to condemn the next Guantanamo. However laudable the decision to close the books on this shameful chapter might be, it is what comes next that counts.
The reviewer is a Brooklyn, New York-based journalist whose work has been published in Harper’s, Mother Jones, and the Nation. Her forthcoming book on terrorism trials in the U.S., The Best Terrorists We Could Find, will be published by Nation Books. She can be reached at www.petrabart.com