Detainee Affairs Debate Begins with Legal Considerations, Official Says

“Fairly or unfairly, (Guantanamo) has a taint and an international taint to it, and people believe that by closing Guantanamo you could remove that taint,” said Alan Liotta, principal director for the Defense Department’s Office of Detainee Affairs, during a call with online journalists.

“But I think a very real argument could be made that, as long as you're not changing the basic legal construct of how we're holding them and why we believe we're entitled to hold them, no matter where you put them you're still going to have that (problem),” Liotta said.

For critics at home and abroad, Guantanamo has become synonymous with human rights abuses and perceived legal excesses in the global war on terror, Liotta acknowledged. And while the U.S. government and the Defense Department can point to a solid legal underpinning for holding and treating detainees as they have been, he said, opponents of the legal construct continue to point to Guantanamo as a stain on the United States’ human rights record.

But simply closing the facility is not the solution to the disagreement, Liotta said. In fact, he noted, closing Guantanamo may actually entail new legal and security problems.

One of the chief concerns of relocating the detention facility is the possibility of al Qaeda or another terrorist group seeking to assault such a facility as a public relations gesture, Liotta said.

“We know for a fact that they've had plans drawn up to do that. We also know that Guantanamo, in its isolation, is a huge deterrent against them being able to do that and being able to attack there,” he said.

“You put that facility in the middle of an American community … and you're going to have a huge burden put upon the local community in terms of what the first responders are going to have be geared up for and where your securities are,” Liotta explained.

On the legal side, Liotta said, relocating the detainees to American soil could open up a host of legal challenges that would be inconsistent with how and why the detainees were originally captured and continue to be held.

Paraphrasing Justice Department arguments, Liotta explained “detainees that come to the United States could have the full panoply of U.S. constitutional protections, which means you'd have to have a judicial hearing on them in a certain amount of time.

“If you couldn't have that judicial hearing in a certain amount of time, they could be released,” he said. “And when they went to be released, as it is, we can't return many of these people to their home countries … either because the home countries won't take them back, or because in some instances the home country is such a place that we know they'll get tortured if they go back.”

The result, he said, is that many of the detainees could be “left free here in the United States.”

While such an occurrence sounds far-fetched, Liotta stressed, “that is, from what the lawyers are telling us, a very real possibility of what could happen.”

That possibility alone, he said, implies the need for serious legal consideration before moving to relocate the detainees from Guantanamo.

On the subject of placing the detainees before civilian courts in the U.S., Liotta explained that the circumstances of the detainees’ capture in Afghanistan and elsewhere make it impossible to pursue trials through standard criminal courts.

“When these guys were secured on the battlefield, they were secured by military troops that brought them in,” he said. “These military troops were in the middle of combat activities. These were not police detectives who had free access to a scene to collect all kinds of evidence.”

The context of high-intensity, live combat operations means troops didn’t have the wherewithal to maintain a formal chain of evidence, read the detainee rights, or work with prosecutors to build a case, Liotta said.

Observed activities at their time of capture, as well as any available evidence and incriminating statements made along the way, form the basis for detention, he said.

That information “can be used in terms of intelligence information and help us to move to other targets and capture additional people, and helps us understand the true nature of the threat,” Liotta noted. However, he said, none of it “would probably be able to be used in a judicial system or court system because any good defense attorney would right away object to it.”

The reality is, Liotta observed, is that despite the threat they pose “the vast amount of evidence that you have simply would not be able to be used in a federal court, and as a result, all these guys would be going free; they'd be walking.”

Recognition of that procedural dilemma led to the formation of the current legal construct for detainees, Liotta said.

He reiterated the legal considerations for capturing and holding the detainees under that system.

When al Qaeda attacked the United States, it was not an organized nation-state, it was not a signatory to the Geneva Conventions, it operated in contravention of the law of war, and it directed strikes at civilian targets, Liotta said.

As such, he explained, in the wake of the Sept. 11 attacks, President Bush determined that all of the individuals associated with al-Qaeda who were mounting terrorist attacks were not entitled to “prisoner of war” status and the protections afforded POWs under the Geneva Conventions.

Neither were members of the Taliban considered legitimate enemy combatants, Liotta said.

Though the Taliban was in control of Afghanistan at the time of the 9/11 attacks, and Afghanistan was a signatory to the Geneva Conventions, Taliban soldiers did not have a recognized hierarchy, they did not follow the laws of war, they targeted civilian populations, and they hid among civilian populations, he said. For those reasons, he explained, the Taliban as a government was determined not to be practicing in conformance with the law.

Rather than POWs, al Qaeda and Taliban members were captured and held as unlawful enemy combatants, Liotta said.

Still, he noted, the United States applied some of the principles of POW status to these detainees for the purpose of executing the war.

“When you capture a lawful enemy combatant and hold them as a prisoner of war,” Liotta said, “you are entitled, under the laws of war, to hold that individual until the end of the conflict. And the reason for that is because you're trying to diminish the enemy's capacity to fight.”

Bush also ordered detainees be held in a manner consistent with the human rights provisions of the Geneva Conventions so long as military necessity allowed it, Liotta said.

“And what that meant was simply that we would make sure that they were properly sheltered, that they were properly clothed, that they were properly fed. The things that were true to our ethos and values,” he said.

Unlawful enemy combatants were not to be entitled to the full benefits of POW status, however, Liotta clarified, “because we did not want to reward them for violating the laws of war.”

Despite ongoing, blanket criticism of Guantanamo, Liotta pointed out that most of the present controversy surrounding detainee affairs pertains not to detention conditions or treatment, but to the government’s legal justifications for holding and processing the detainees.

“It's not so much the objections over how we treat people: the care and treatment issues. I think we've largely crossed that bridge and shown people through demonstrable action and the transparency at Guantanamo that that's not an issue,” he said.

“What people are objecting to is the overall legal framework of how we're holding people, and whether you're holding people with proper due process or not,” he added.

For now, working within the current legal framework, Liotta said he anticipates three general end states for the detainees now in custody at Guantanamo.

A first group of about 75 to 80 detainees will face trial before military commissions – special tribunals enacted by the administration and Congress under the Military Commissions Act of 2006 to hear cases involving battlefield crimes – Liotta explained.

The second group includes detainees eligible to be transferred back to their home countries, pending assurances from those countries that they can mitigate the threat posed by the intended transferees, he said. More than half of the detainees who have passed through Guantanamo have been transferred in this fashion, he noted.

“We've sent more than 380 back already, and we're in continuous negotiations with countries to accept responsibilities for their nationals,” Liotta said.

The third group, Liotta explained, is composed of detainees who will not be brought before military commissions “for any one of a number of reasons, and who we do not feel secure enough in sending back to their home country, because we just don't believe they can adequately mitigate the threat” from the detainee.

This group of about 50 will make up the long-term population of Guantanamo or any other detention facility, Liotta said. Any individual within this group is “just too dangerous to take the chance that if we give him back to another country, they'll let that guy go,” he added.

Even for this last category, detention will not be “in perpetuity,” Liotta clarified, but it is extremely important to keep them off of the battlefield for the duration of the conflict, and the United States military “are probably the only people that can adequately mitigate the threat of these very dangerous individuals,” he said.

In total, Liotta said, the detainee affairs process and the conditions at Guantanamo Bay represent an effective means of handling a legitimate global threat that the United States was forced to address following the 9/11 attacks. Though open to criticism, he said, the regimen works to balance that threat to America’s security with the country’s traditions of respect for human rights and due legal process.

(Tim Kilbride is assigned to New Media, American Forces Information Service.)