Debating Conditions at Guantanamo
SCOTT SIMON, host:
This is WEEKEND EDITION from NPR News. I'm Scott Simon.
The Senate Judiciary Committee held hearings this week about the prison at the US military facility in Guantanamo Bay. More than 500 prisoners are being kept who have been captured in the war against terrorism without being charged or tried. The US government says they are enemy combatants who possess information critical to preventing terrorist attacks. In Friday's USA Today, Defense Secretary Donald Rumsfeld wrote that the detainees are in Guantanamo to be interrogated, not punished, and that al-Qaeda operatives are instructed to claim abuse if they're ever captured. Still, as details of abuses at the facility have been made public, many human rights groups and international legal analysts question Guantanamo's legitimacy. Even some of the administration are reportedly beginning to wonder if keeping Guantanamo open is worth the cost of it becoming a symbol. John Yoo worked on terrorism issues in the US Justice Department's Office of Legal Council from 2001 to 2003. He's now a law professor at the University of California-Berkeley, and joins us from there.
Mr. Yoo, thanks for being with us.
Professor JOHN YOO (University of California-Berkeley): Thank you for having me.
SIMON: And in our studio is David Cole, who teaches at the Georgetown University Law Center. He's author of "Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism."
Thank you for being with us.
Professor DAVID COLE (Georgetown University Law Center): It's great to be here.
SIMON: Mr. Yoo, let me begin with you. Explain to us what you considered in opening Guantanamo Bay?
Prof. YOO: Well, first, the war on terrorism is a war. And in any war, you have, as a nation, the right to detain members of the enemy, hold them till the end of the conflict. So the question was where to detain al-Qaeda members, terrorists who are captured in operations in Afghanistan and elsewhere. Guantanamo Bay has a lot of advantages. It's removed from the front lines so it doesn't provide an attractive target for enemy terrorists who might want to try to release the prisoners. And you can see some of that in Abu Ghraib, where the Abu Ghraib facility was constantly under attack. Yet, at the same time, it's outside the United States so you don't have the effect of bringing terrorists within the country. And it's a unified, secured facility where the military intelligence agencies can conduct interrogations because the second thing you're allowed to do under the laws of war is to interrogate members of the enemy to gain intelligence on the enemy's future plans. And it's far better, I think, to have that centralized and unified in a secure place than having it on the battlefield all over the world in an uncontrolled fashion.
SIMON: Mr. Cole, where does that make sense or not make sense to you?
Prof. COLE: Well, I think there's no question that a country in military conflict can hold people who are fighting against it for the duration of that conflict. What's controversial is the way in which the government went about it. It refused to provide hearings so that we could decide whether the people were actually al-Qaeda fighters or innocent people who got picked up by bounty hunters. It put them on Guantanamo in large part so that it could argue that literally no law applied to the people there. It sought to detain them using coercive tactics close to and, in some cases, equaling torture. And it argued that it could hold them not only for the duration of the conflict with al-Qaeda, but according to Donald Rumsfeld, until there are no longer any terrorist organizations of global reach left in the world, a condition that we'll never obtain. So the claim is we can hold these people forever, without hearings, and we can interrogate them coercively. And it's because of that that Guantanamo has become such a symbol of embarrassment for the United States around the world.
SIMON: Mr. Yoo, let me follow up with something. What's the end of the conflict?
Prof. YOO: I think this is the hardest legal question in this whole war. Al-Qaeda is not a nation, it's never signed the Geneva Conventions. It doesn't obey the laws of war, kill civilians and target civilians, doesn't take prisoners, and so they seem to not have any desire to follow the rules of civilized warfare. So I think that the end of the conflict will have to be something else, something more along the lines of have we significantly destroyed them so that they can't launch a successful attack on the United States homeland itself.
Prof. COLE: Nobody argues that a country in a military conflict cannot hold those who are fighting against it. What people find unacceptable is the president's position that he can hold anybody, anywhere in the world simply on his own say-so without any hearing whatsoever, and that he could subject them to tactics like using dogs to intimidate them, sexual harassment, threatening their family members and the like to obtain information. And I think the administration has really painted itself into a corner here having tortured and having coercively interrogated so many people in this conflict. We can't release them cause we think they're dangerous. We can't try them because all the evidence we've obtained against them is suspect, and ultimately undermined the war on terror by giving al-Qaeda the best propaganda it could have asked for.
SIMON: Mr. Yoo, I have to turn to you. You were widely considered to be the man who authored the Justice Department memo that said that coercive tactics were legal.
Prof. YOO: Mm-hmm. Well, let me say one thing. First of all, a lot of the things David is talking about have not occurred at Guantanamo Bay and I don't believe were ever ordered by the president.
Prof. COLE: Time magazine just this week issued the Defense Department's own interrogation log of a man named Mr. al-Qahtani in which the government used dogs and sexual harassment against him in order to try to get him to talk. So all kinds of completely unacceptable tactics have been employed at Guantanamo, according to the Defense Department's own interrogation logs, according to the FBI, which sent people there and described seeing people shackled, naked on cold floors so long that they urinated and defecated upon themselves.
SIMON: Mr. Yoo?
Prof. YOO: First of all, I think al-Qahtani is a good case, and I'm not approving everything that happened. Certainly, there's no evidence that the tactics that were used by some of these interrogators were approved in any way. But let's talk about who he was, right? Mr. al-Qahtani really was going to be the 20th hijacker. If these people do not obey the laws of war, they are covered by the laws more generally, but they are not entitled to all the prisoner-of-war protections that we have provided members of the enemy armed forces, again, when they're fighting for a nation state. This is an enemy that targets civilians and kills them on purpose, which is the core principle of the laws of war is not to kill civilians on purpose. That's the very method that al-Qaeda uses to attack people. So the question is, sure, we are taking criticism from other nations, from human rights groups, and that's certainly a negative, but it has to be balanced against the positives that the United States can gain in intelligence from interrogating people, coercively, like Mr. al-Qahtani, like other people that can provide information that will stop attacks on the United States.
Mr. COLE: The thing is, there's just no evidence that you've got to torture people to get good information. And there's lots of evidence that people will tell you anything if they're tortured. And the fact...
Prof. YOO: But, David, all I'm saying...
Prof. COLE: We stopped...
Prof. YOO: ...David, it's not...
Prof. COLE: No, then coercive tactics...
Prof. YOO: Listen, there's a difference.
Prof. COLE: Well, John, you've argued that torture only consists of severe physical pain equivalent to that that accompanies organ failure and death, an argument that has been roundly rejected. So, yes, under your definition of torture, no, these wouldn't be torture.
Prof. YOO: Look, it's a cost-balance decision that our policy-makers have to make. Is the benefits from the intelligence information they get outweigh the negative political effects that we're generating from Guantanamo Bay? And so far, I think, our political leaders in any rate have decided that that's the case.
Prof. COLE: And I think the right answer is hold those people who have been accurately determined to be fighting for al-Qaeda, try those who we can, in fact, convict of war crimes simply because they violate the laws of war. They violate human decency; we shouldn't stoop to that level. And, in fact, it's critical for our legitimacy in the war on terror that we don't stoop to their level.
SIMON: Gentlemen, I want to thank you both for being with us.
Prof. YOO: Thank you.
Prof. COLE: Thanks.
SIMON: David Cole, professor at the Georgetown University Law Center and author of "Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism." And John Yoo, professor of law at the University of California, Berkeley.
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