To avoid a new Guantanamo, use the past to shape the future

This past month, the Biden administration took several concrete steps toward closing the post-9/11 chapter of the War on Terror. The withdrawal of troops from Afghanistan is nearly complete. The military withdrawal from Iraq is now scheduled for the end of the year. Lawmakers are poised to sunset the statutory authorization for the War on Terror, the 2001 Authorization for Military Force. And last week, the first Guantanamo prisoner in three years was released to his home country of Morocco. Ten other detainees have been approved for release, meaning that the detention facility that became an ominous symbol of the War on Terror may soon house only twenty-nine aging men. 

As the Biden administration takes steps to end the War on Terror, policymakers need to reflect on how we might have done things differently. It is time for hindsight. And central to any discussion of lessons learned for future conflicts is how to avoid another Guantanamo Bay. Guantanamo has been a disaster by every measure. Learning five lessons can prevent it from happening again.

1. We should define our enemy clearly. The 2001 AUMF, under which the prisoners at Guantanamo are detained, did not name the enemy in what became the War on Terror. This enabled men, who were arrested in all corners of the globe, to be held for years and then decades without trial based upon tenuous alleged connections to al Qaeda, the Taliban, or the war in Afghanistan. In future conflicts, we need to know who we have captured and why. Lawmakers need to provide clarity about who we are fighting. 

2. We should know the conditions for ending the war. The 2001 AUMF did not lay out the terms or conditions or circumstances that would define an end to hostilities, or the end of captivity for prisoners. Their continued detention has always been predicated upon the international law rule that detention is permitted to prevent combatants from rejoining the fight. But not knowing when or how the fight can end, this has created a system of indefinite detention, a forever war with forever detention without charge or trial. This is anathema to the American rule of law. In future conflicts, we must have a way of knowing when the fighting has stopped.

3. We should use international law. In January 2002, the Bush administration opened the detention facility in Guantanamo because, as one administration official described it, it would be the “legal equivalent of outer-space.” This was part of a larger repudiation of international law as “quaint,” the refusal to treat those whom we captured as prisoners of war under the Geneva Convention and the embrace of torture. In World War II and subsequent wars, the United States adhered to international law because lawlessness leads to quagmires like Guantanamo. In future conflicts, we should trust international law because it is designed to give law-abiding countries the upper hand. 

4. We should place trust in our civilian courts. In the climate of fear following Sept. 11, 2001, we created a system of military commissions outside of the civilian courts, where terrorism had been successfully prosecuted for decades. Abandoning our criminal justice system in favor of the Guantanamo military commissions has been a complete failure. In fifteen years, the U.S. government has not been able to try the perpetrators of 9/11 who were first charged in the military commissions in 2007. The military is not well-equipped to prosecute complex international terrorism cases. By contrast, the federal court system has resolved hundreds of terrorism cases. In the future, we should trust the civilian courts to do what we have equipped them to do so well.  

5. We should never, ever use torture. After 9/11, torture — outlawed under international, domestic and military law — was used against alleged terrorists at CIA “black sites.” The torture yielded no actionable intelligence. The military commissions have been dysfunctional in large part because evidence tainted by torture has hindered these trials from the start. Torture has delayed and therefore denied justice for the victims of the Sept. 11 attacks for a generation. It has made it harder to maintain security cooperation with our allies. And it has multiplied our enemies.

Avoiding another Guantanamo is important. Imagine if the United States had detained captives in the war on terror in a just and humane way. Imagine if we had trusted the rule of law, and drawn our strength from it to make a more peaceful world. Imagine if we had retained, even strengthened fairness and justice worldwide. We would have refused to accept bin Laden and al Qaeda’s terms of warfare: lawlessness, cruelty and injustice.  

All wars should be avoided. But if history is any guide, the United States will find itself in future wars. When that happens, we should insist on clear terms defining the enemy and the battlefield, adherence to law, trust in our courts, and a refusal to torture. We should never again let the uncertainty of the moment blind us to the far graver challenge of protecting the values we have striven to more perfectly realize for two-and-a-half centuries. 

Karen J. Greenberg is the director of the Center on National Security at Fordham Law and the author of “Subtle Tools: The Dismantling of American Democracy from the War on Terror to Donald Trump” (August 2021). Follow on Twitter: @KarenGreenberg3

Michel Paradis is a human rights lawyer, who has represented Guantanamo detainees for the Department of Defense, a lecturer at Columbia Law School, and most recently the author of “Last Mission to Tokyo: The Doolittle Raiders and their Final Fight for Justice” (2020). Follow on Twitter: @MdParadis