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Closing Down Gitmo

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Closing down Gitmo: Part 1

An interview with David Cole

By David Murdock

DAVID COLE, GEORGETOWN LAW PROFESSOR: The Bush administration has declared this war on terror, which is by definition un-endable and un-winnable. And what do you do as the next president coming in to pick up on an undertaking that was a mistake to begin with? We have locked up, for over six years now, hundreds of people at Guantanamo. How are you going to give them a fair trial at this point? How are you going to treat them fairly given six or seven years of unfair treatment? The Bush administration has subjected many of the most important detainees in the war on terror to torture and other inhumane interrogation practices that have made it virtually impossible to bring those people to justice. Not one of the masterminds of 9/11 has been brought to justice, and it’s principally because of the torture and coercive interrogation tactics that the Bush administration sought to employ. What President Obama needs to do is mark a sharp distinction from what has gone before. He’s already said that he will close Guantanamo. But, of course, that simply raises the question of what you do with the people at Guantanamo. And there we don’t know yet what he’s going to do, and I think it’s a real challenge. On the one hand, you probably can’t try all of them, in large part because of the way the Bush administration treated them and tainted the evidence that would be used against them. On the other hand, you wouldn’t necessarily want to release someone like Khalid Sheikh Mohammed simply because you can’t convict him of a crime in the short term. And so I think what they need to do is develop fair procedures for criminal trials of those who they can try, and they need to develop fair procedures for preventive detention of those who are actually fighting for the enemy against us in the conflict in Afghanistan. Those people, I think, can be detained without a trial as long as we know that they are in fact combatants and as long as they’re treated humanely as prisoners of war. But thus far we’ve never provided them with a fair hearing and we’ve refused to treat them humanely. So I think that’s the first thing is we have to deal with Guantanamo. The second thing is he has to deal with torture. President Bush said, time and again, "We don’t torture." But in fact he was redefining torture in such a way that it would allow our officials to torture people and waterboard people in our name. We have to be absolutely clear that we are repudiating that past, that we are not going to authorize coercive interrogation of that nature ever again, and—and this is the hardest part—we have to hold accountable those who committed war crimes and crimes against humanity by torturing suspects in the war on terror. That’s going to be a very difficult enterprise politically within the United States for President Obama to proceed on. The difficulty is that responsibility goes all the way to the top. This was not the action of a few bad actors; it was authorized by high-level decisions made in the White House by everybody from the president on down not to apply the Geneva Conventions to the people at Guantanamo, for example, to interpret the torture provision in a way that nobody had ever interpreted it, to permit things like waterboarding, to interpret the prohibition on cruel and inhuman treatment to not apply to foreign nationals. That was Alberto Gonzales when he was White House counsel. You had meetings in the White House of the defense secretary, the secretary of state, the vice president, the attorney general, all personally authorizing the tactics employed by the CIA in coercive interrogation in their secret prisons, their dark sites. So are you really going to see criminal trials of John Ashcroft, Colin Powell, Condi Rice, George Tenet, Don Rumsfeld, Dick Cheney, and George Bush? I don’t think so. But unless we come up with some form of meaningful accountability for those individuals who put their stamp of approval on criminal conduct of the worst sort, I don’t think the world’s going to take us at our word if we say we’re moving beyond. I think what we really need is an independent commission, a bipartisan, independent commission, fully funded, looking into the torture policy. How did it happen? Why’d it happen? Who’s responsible? And what should we do going forward to make sure it never happens again? Absent that kind of accountability, which I think is realistic to expect, I don’t think the world’s going to take our word for it if we say, "We don’t torture."

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