A few days ago, a story came out in which William Lietzau, the Pentagon’s Deputy Assistant Defense Secretary for Detainee Affairs and point-man on Guantanamo Bay, admitted that he would argue against building Guantanamo. This came following Lietzau’s announcement that he would be leaving his post to continue his career in the private sector. He also gave President Obama a pointer on how to close Guantanamo; announce that the so-called war against al-Qaeda has come to an end. Lietzau, who was key in getting Guantanamo built in the first place, was quoted as saying, “[a]rguably, if the war aim of diminishing Al Qaeda’s ability to mount a certain level of attack has been achieved, we could declare an end to hostilities and return to dealing with the threat as a law enforcement matter.”
This would basically wipe out what little justification the government has for keeping the prison open since we would no longer be engaged in hostilities with the detainees’ organization, at least officially. That doesn’t mean that we would cut all Guantanamo detainee’s loose. We would still be able to hold and charge those we’re already planning to charge, so we would obviously proceed with trials against KSM and the like. They would just need to be transferred from Guantanamo to the federal court system. It also means that we would be forced to free the detainees that are in legal limbo with no charges filed against them. Lietzau’s suggestion would also take care of that pesky little hunger strike problem we’ve been dealing with, so that’s another plus. It’s just too bad that he had to wait until he was walking out the door to propose this plan.
In addition to offering suggestions on how to close Guantanamo Bay, Lietzau also admitted that slapping the “detainee” label on prisoners is probably improper. Lietzau stated, “[i]f I could change one thing in Gitmo’s past, I would have called them prisoners of war from the beginning.” It seems like a pointless differentiation on the surface, but there would be some serious implications if we reclassified detainees as POW’s. First, the legal status of detainees would have been much more clear-cut from the beginning. Detainees at Guantanamo were not covered under Article III of the Geneva Convention until 2006. So it turns out we could have easily avoided most of the problems at Guantanamo by making this one little change at the beginning of the War on Terror.
It turns out that this distinction may have allowed us to avoid Guantanamo Bay altogether. According to Lietzau, we would have been able to hold current detainees in Afghanistan or in federal prison instead of building an expensive, scandal-ridden detention center in Cuba. This sort of explains why we elected to classify prisoners as detainees. It’s clear that a large number of Republicans in Congress oppose the idea of bringing detainees onto American soil. And Republicans controlled both the House of Representatives and the Senate at the time we decided to use the detainee label. So it makes sense that we decided to use a classification that allowed us to hold prisoners outside of the U.S., but at a more stable, controlled region than Afghanistan.
It’s frustrating (but not surprising) to me that Lietzau waited until he was on his way out to admit these errors. I get that it’s a sensitive, extremely difficult situation with a lot of grey area. Mistakes will inevitably be made. And we need to be able to make changes on the fly, not wait until we’ve handed in our resignation papers to admit that we could have made changes to improve the system. But I guess that’s what happens when we’re dealing with a political climate where it’s more important to stick to your guns than use common sense and admit mistakes in a timely fashion. Nonetheless, Lietzau’s statements seem to make some sense. We’ll have to see who his successor is, but hopefully that person will have the courage to make changes when the need arises.
Chris Whitten, Research Fellow
Center for Policy and Research