Question Mark Still Hangs Over Guantanamo

President Obama came into office with the promise to close the prison at Guantanamo Bay and either transfer or try all detainees. But the fate of the prison remains in limbo. Congress passed a bill last week essentially barring the administration from making any major decisions on the detention facility for the next fiscal year. Former U.S. Attorney General Alberto Gonzales talks with Michel Martin about the future of the base.

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MICHEL MARTIN, host:

I'm Michel Martin, and this is TELL ME MORE from NPR News. Coming up, January 1 is just around the corner, are you ready to close out the old fiscal year and toast to the new one? Our money coach, Alvin Hall will be here to help with those end-of-the-year tax decisions. That is coming up.

But first we turn to an issue that will not go away despite the passing of years or the change in administrations. It is the problem of Guantanamo. That U.S. Naval base on the southeastern tip of Cuba has been used to house prisoners detained in connection with the war on terror since January 2002.

President Obama came into office with the promise to close it and either transfer or try all the detainees. He even gave himself a deadline of January of 2010. But 174 prisoners are still there, and 48 of them are considered to be in legal limbo, too dangerous to release, and for various reasons cannot be tried.

To make matters more complicated, Congress passed a bill last week essentially barring the administration from making any major decisions on Guantanamo over the next fiscal year.

At a recent press conference, White House spokesperson Robert Gibbs, told reporter Guantanamo is not going to close any time soon.

Mr. ROBERT GIBBS (White House Press Secretary): I don't think anybody would find it surprising that the President and this administration understand that there are those that have been evaluated by our intelligence community, by our defense infrastructure, that - and we understand as the President does, that there are some that will require indefinite detention.

MARTIN: As a result, the administration is considering an executive order for those detainees who are in legal limbo. The order would set up a kind of parole board for those prisoners to challenge their detention. This according to the investigative news group ProPublica and the Washington Post.

We wanted to dig into this important issue, so we've called upon Alberto Gonzales. He is the former attorney general of the United States, a former White House counsel to President George W. Bush. He now serves as visiting professor of political science at Texas Tech University, and he joined us from member station KOHM in Lubbock, Texas.

Professor Gonzales, thank you so much for joining us once again.

Prof. ALBERTO GONZALES (Former United States Attorney General): Thank you for having me.

MARTIN: Could you take us back to how and why Guantanamo was selected?

Prof. GONZALES: Sure. In December of 2001, as the war in Afghanistan began, and we started capturing people, we realized that we needed to have a place to secure them - to detain them, as enemy combatants. And we looked at a variety of options. We looked initially at perhaps holding them in some kind of facility in Afghanistan, but we considered that too dangerous for the prisoners, and actually too dangerous for the soldiers that would be guarding them.

We looked at would it be possible to return some to the home countries. Many of them were from Afghanistan unfortunately, and there wasn't really a government in place at the time that we felt comfortable could secure their continued detention.

And we looked at other countries and that seemed to be unworkable also. We even looked at perhaps putting them on some kind of aircraft carrier, floating vessel for a period of time. And we also looked at the possibility of bringing them back into the United States but, we quickly made the decision that bringing foreign terrorists into this country just shortly after the attacks of 9/11 would be something the American public would not stand for.

And so we looked at all the options and we finally concluded on that Guantanamo represented the best of a short list of bad options. It was a place that was secure, we could guarantee the safety of the detainees. We could guarantee the safety of the soldiers guarding the detainees, and thats the recommendation that was made by members of the National Security Council to the President of the United States, President Bush, and that was the decision adopted by the United States government at the time.

MARTIN: And this whole question of who is an enemy combatant and who isn't. If you would just explain what you understand that term to mean.

Prof. GONZALES: Well, under the laws of war, you are an enemy combatant if you carry arms, if you're fighting against a nation state. And so, if in fact you're captured on the battlefields of Afghanistan and carrying a weapon and waging war against the United States, you are an enemy combatant. And there is no disagreement about that term.

It's long been established in the laws of war that as an enemy combatant, if you are in fact a legitimate enemy combatant, that a country that captures you can detain you indefinitely. That is a long accepted custom - long accepted principle among nations around the world, that under the laws of war, you don't have to be charged. You can be detained indefinitely because if you're engaged in a conflict, you have an obligation to protect your citizens who are fighting in that conflict.

And if you capture an enemy soldier, you want to detain them so they cannot go back and fight against your soldiers. And so I know some people are uncomfortable with the notion that the United States can detain people indefinitely without charges. They just fundamentally misunderstand, or they choose to ignore the fact that this is not a criminal proceeding.

These are actions taken under the laws of war, and under the laws of war the United States government can detain someone indefinitely without charges, even if you're an American citizen. And this is not something that was proposed by the Bush administration. This was something recognized by at least five votes -five members of the Supreme Court in the Hamby(ph) decision in 2003.

MARTIN: And if we were to ask you, though, the distinction - it matters though in part because of the question of what happens next, and what procedures should be used to evaluate what happens next. But there is one question - it's been reported by Jane Mayer in her book "The Dark Side," she reports that as early as 2002 - the summer of 2002, which is shortly after Guantanamo opened, that the CIA knew that about a third of the detainees there didn't belong there, that they had been, you know, turned in for personal grudges or things of that sort. That they were - that it was a mistake. Are you aware of that?

Prof. GONZALES: Well, what I can say is that we put in place a series of processes to ensure that only those that were in fact enemy combatants, and those that did not have - those who had intelligence value or were otherwise dangerous to this country, were being detained, not only in Guantanamo Bay but also in Afghanistan.

Now, over time that system has gotten better. Additional layers of review have been added, and clearly in the beginning, it wouldn't surprise me that there was some mistakes that were made. Mistakes are made in every conflict quite honestly, in terms of capturing people that are not enemy combatants.

But over time that process has gotten better and review processes put in place under the Bush administration. And it's my understanding that under the Obama administration that additional layers of review have been included.

MARTIN: And I do want to ask you, and this is one of those issues that we are not going to have to fully address, but in fairness, I do have to mention that Jane Mayer also reports that in as early as 2006 or 2007, the International Red Cross reported that the conditions there - that some of these prisoners were routinely subjected to torture, and I think it's appropriate to ask your response to that.

Prof. GONZALES: Well, I - what I would say is that the United States government does not torture individuals. Now, were they mistreated, did some people go beyond the rules that were set forth by the Department of Justice, that very well may have been the case.

Whenever the Department of Defense was made aware of potential abuses, those were always investigated and those responsible were held accountable.

So what I would say is, is that we certainly understood what our legal obligations were and President Bush was very clear in saying that the United States government does not engage in torture, and those involved in conduct that was deemed torture by the Department of Justice, those were investigated and people were held accountable.

MARTIN: If you're just joining us, we're speaking with former attorney general, former White House counsel, Alberto Gonzales, and we're talking about the problem of Guantanamo. President Obama is said to be considering an executive order that would set up another process to determine what to do with the prisoners who are still detained there but are deemed too dangerous to release. And for whatever - for various reasons cannot be tried.

You know, the Bush administration was known as one that zealously guarded executive prerogatives. And so we'd like to ask, what is your response to the decision by Congress to essentially, through the budgetary process, say that you can't move anybody.

Prof. GONZALES: Well, that - certainly Congress has the authority to do that under the Constitution and obviously one thing - one of the lessons that I learned, and I think that is clear to constitutional scholars is that the President is always strongest when the President is acting with the - not only with the authority, but with the agreement of Congress by statute or by some sort of resolution.

And the President's power is weakest, even his powers as Commander-in-Chief is weakest when he's acting in contravention of an act of Congress. So if Congress passes a resolution or passes a law that says you cannot close Guantanamo, or you cannot bring detainees into the United States, and if the President acts contrary to that, then the President is acting with - at his weakest standing and that is something that is likely to be challenged in the courts and maybe a successful challenge.

MARTIN: And finally I wanted to ask you - we only have a couple of minutes left, and these are very difficult issues, but to that point you once said that at the beginning of the administration you said that this particular issue raises a whole host of legal questions. If a person has had to grapple with these legal questions, what makes this issue so intractable?

Prof. GONZALES: What makes it so difficult is the fact that we are still engaged in a conflict of war and these are dangerous people that are intent on harming the United States.

President Bush wished he could have closed Guantanamo. He did not want to be known as the world's jailer. We realized that Guantanamo was a public relations problem for the United States of America, but we also realized that Guantanamo was necessary and there wasn't a viable alternative.

And so long as it remains necessary to detain dangerous enemy combatants, and so long as there's not a viable alternative that's acceptable to the American people and the American Congress, then Guantanamo's going to continue to exist in my judgment. And I think this is something that President Obama and this administration is understanding.

MARTIN: Their argument is it's not just a cost to the United States in terms of reputation, it's a cost in security because it presents a moral challenge to the country. Do you - what is your view of that?

Prof. GONZALES: I'm not sure - well, I don't know what that means when you say it presents a moral challenge to this country. You know, the truth in the matter is what is the alternative? You bring them all into the United States, you put them in one facility, at that point the enemy is going to say this is the new Guantanamo and they will use that as a way to recruit additional terrorists against the United States.

So we - the United States, I think, has made tremendous strides in making sure that the facilities of Guantanamo, that the treatment of the detainees at Guantanamo meet every letter aspect spirit of both domestic and international law.

MARTIN: Alberto Gonzales is the former attorney general of the United States. He's also former White House counsel. He's now a visiting professor of political science at Texas Tech University, and he joined us from member station KOHM in Lubbock, Texas.

Professor Gonzales, thank you so much for joining us, and happy holidays to you.

Prof. GONZALES: Thank you

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