Why Guantanamo Bay Should Stay Open

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Bradford Berenson is a lawyer who served in the White House counsel's office and helped form policy on the capture and imprisonment of detainees. He argues that the Guantanamo Bay detention center should stay open.


Critics of the Guantanamo Bay detention center have yet to persuade the Bush administration. Former President Jimmy Carter is among those who want to close the facility that holds hundreds of prisoners. And yesterday, on this program, we heard a sampling of criticism in the Arab media. President Bush says all options are open, though he defended the center, as did Defense Secretary Donald Rumsfeld.

Secretary DONALD RUMSFELD (Department of Defense): Information that has been gained from the detainees there has saved lives of people from our country and other countries to our certain knowledge.

INSKEEP: We're going to talk about this more with Bradford Berenson. He's an attorney at Sidley Austin Brown & Wood. He previously served in the Office of White House Counsel where he worked on detainee policy, and he has also been involved in court cases over detainees at Guantanamo Bay.

Good morning.

Mr. BRADFORD BERENSON (Attorney, Sidley Austin Brown & Wood): Good morning.

INSKEEP: We've heard plenty of arguments for closing the Guantanamo detention center. What is the argument for keeping it open?

Mr. BERENSON: Guantanamo has become a symbol for a set of practices in the war on terror that people object to. But it's really not Guantanamo that people have a problem with. It's the practices involving detainees at Guantanamo that are the fodder for the critics. So closing Guantanamo really will have only symbolic value. The things that we are doing at Guantanamo Bay will still have to take place somewhere and Guantanamo is in many ways the ideal location to have prison camps of this kind. It is completely secure, so there are no risks to American civilian populations, no risks of escape, yet it is close to the United States so that policy-makers, lawyers, journalists, can have ready access, but it is not within the United States. In that sense, Guantanamo's somewhat unique.

INSKEEP: Forgive me, are you saying that the practices that have been widely criticized in the way that US has treated detainees are going to continue no matter what?

Mr. BERENSON: No, I don't mean that the abuses or the violations of US policy that have occurred from time to time are going to take place elsewhere or anyway. But those things are not really what are stimulating the criticism. The critics of Guantanamo Bay and the critics of the administration's detainee policy don't like the fact that we are holding people as enemy combatants in a war on terror and that we are keeping them outside of the criminal justice system. That won't change.

INSKEEP: As a former official in the White House, and now someone who remains involved in these issues on a private basis, what is your sense of the value that the United States is getting out of those detainees?

Mr. BERENSON: You know, my information is somewhat out of date on this. But when it was more current, I was informed by people who were close to the process down there that there was a considerable amount of valuable intelligence being derived from the Guantanamo detainees. But the gathering of intelligence is not the only purpose of detaining these folks. The primary pre-eminent purpose is to prevent them from returning to the fight against the United States, from planning terrorist acts against US civilians or against our forces overseas. It's a matter of incapacitation and intelligence.

INSKEEP: In 2004, an FBI memorandum was written, which has since been made public, in which the techniques being used at Guantanamo Bay to get intelligence were described as so coercive that the information was, quote, "suspect at best." It does raise the question about whether we're getting anything useful.

Mr. BERENSON: It's not surprising that to the eyes of domestic law enforcement officials, military interrogation and military intelligence operations appeared harsh. That isn't to say that the intelligence we're getting from the Guantanamo detainees isn't valuable or isn't reliable.

INSKEEP: Isn't it kind of a truism that if someone is tortured they will say anything to stop the torture?

Mr. BERENSON: Well, there's a big difference between true physical coercion and torture and the application of psychological pressure. And determining whether someone is telling you the truth is something that these interrogators are skilled at and, from what I understand, we've learned a lot about terrorist financing, bomb construction, al-Qaeda's structure, training and its means of smuggling agents into the United States from interrogations of those held at Guantanamo.

INSKEEP: Here's another one of these memoranda that have been released from the FBI. They've been published by the American Civil Liberties Union, which is opposed to much of what has happened at Guantanamo Bay. The memo here quotes what is presumably an FBI agent describing what this person personally observed at Guantanamo. Quote, "On a couple of occasions, I entered interview rooms to find a detainee chained, hand and foot, in a fetal position to the floor, with no chair, food or water. Most times they had urinated or defecated on themselves and had been left there for 18 to 24 hours or more." This really goes on for some time, and it's hard to read. I do wonder what we do get out of that.

Mr. BERENSON: Well, nobody would either, A, deny that there have been abuses in the interrogation process, or, B, condone those abuses. The administration has been very forthcoming in publicizing the instances in which there have been problems and in trying to punish those responsible, but the existence of abuses doesn't discredit the entire operation of gathering intelligence. I daresay that in every single armed conflict in which the United States has been involved or any other power, for that matter, there have been abuses of this kind. It's one of the ugly but, unfortunately, inevitable, aspects of warfare, but that doesn't mean that the entire enterprise should be abandoned.

INSKEEP: Now on the other point that you raised for keeping Guantanamo Bay open, that it simply holds people out of the conflict who might otherwise be extraordinarily dangerous. Are you confident that every person at Guantanamo, or even most of the people at Guantanamo, are, in fact, terrorists?

Mr. BERENSON: I cannot be confident that every single person at Guantanamo is a terrorist. I can be confident that the vast majority of those down there are terrorists or are in some way or another associated with al-Qaeda or the Taliban. And, indeed, all but the most skewed and partisan critics will acknowledge that whatever the error rate is in our capture and detention of suspected terrorists, and surely there is one, it can't be terribly high.

INSKEEP: Is there a reason to at least improve or expand the oversight of what happens at Guantanamo Bay?

Mr. BERENSON: Absolutely. I think over the past several years, really, quite an unprecedented level of access has been granted, not only to congressional overseers and other policy-makers in the executive branch, but also human rights groups, the American Red Cross, lawyers for the detainees and others. I think the administration is trying to do what it can to ensure that what happens at Guantanamo is lawful and appropriate and that the watchdogs we have in our society to ensure that are given access so that they can make certain that's happening.

INSKEEP: Some of those watchdogs say they've been misled--Jane Harman, the Democratic congresswoman.

Mr. BERENSON: I don't know anything about the particular circumstances of her visit. You know, it's inherent in the nature of these visits that you don't see a perfect snapshot of daily life in the camp when you're there because there's a certain intrinsic artificiality to visits by outsiders to facilities of this kind. It's the same artificiality that exists even when one goes to tour a domestic prison facility. I suspect that if Guantanamo were closed down and all of its operations were moved elsewhere, inevitably that would mean moving them much farther away from the United States. And then there would be a chorus of criticism that the government is making it difficult for people to visit the facility.

INSKEEP: We've been speaking with Bradford Berenson. He's an attorney and formerly served in the Office of White House Counsel from 2001 to 2003. Thanks for speaking with us.

Mr. BERENSON: Thank you.

INSKEEP: This is NPR News.

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