Author: Lamrot Jinfessa

What are Enhanced Interrogation Techniques? 

Enhanced Interrogation Techniques refers to interrogation methods employed by the Central Intelligence Agency (CIA) and Defense Intelligence Agency (DIA) on detainees at remote detention centers, including Guantanamo Bay. These interrogation techniques were authorized shortly after the 9/11 attacks with the goal of extracting intelligence from suspected terrorists. During these special interrogations, the U.S. government approved the use of techniques including sleep deprivation, total isolation, waterboarding and more. Enhanced Interrogations were carried out between 2002 to 2009. At least 39 detainees during this time period underwent “enhanced interrogation”.

The Authorization of Use of Military Force (AUMF) was enacted by Congress as another War on Terrorism initiative. The Act granted the President the power “to take…necessary actions against international terrorists and terrorist organizations, including those nations,  organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001”. AUMF served as a legal foundation for the military invasion and operations in countries over two decades. 

On Sept 17, 2001, President George W. Bush signed a classified covert action Memorandum of Notification (MON), authorizing the CIA to capture and detain persons suspected of terrorist activities.  

AUMF and MON were used to justify the use of enhanced interrogation on detainees deemed to be suspected terrorists. Policymakers are now asking whether the use of these techniques is an effective and ethical method of eliciting information or discouraging insurgents.

Enhanced Interrogation Arguments: 

Following the Sept. 11, 2001 attacks, the Bush administration grappled with what to do with prisoners of war and suspected terrorists offered to the U.S by other countries. A letter sent by the CIA to the White House advocated for torturing individuals such as Abu Zaubaydah, a detainee in Guantanamo Bay, to protect American lives; The CIA wrote to the White House, “countless more Americans may die unless we can persuade [Abu Zubaydah] to tell us what he knows.” 

The Senate Intelligence Committee published a report that details hidden aspects of the CIA interrogation program. The CIA continued to justify the usa of enhanced interrogation by describing their program to the Department of Justice and Congress as “getting unique, otherwise unobtainable intelligence that helped disrupt terrorist plots and save thousands of lives,” an official who briefed the report informed The Washington Post. As a testament to the effectiveness of the enhanced interrogation techniques used on detainees, the CIA cited examples of specific terrorists plots “thwarted” and terrorists captured based on information revealed following enhanced interrogation. 

The Senate Intelligence Committee studied 20 counterterrorism success cases cited by the CIA, and uncovered discrepnies. For example, in some cases, there was no relationship between the counterterrorism success and information gained using enhanced interrogation techniques from detainees. In the other cases, the information acquired by the CIA was incorrectly labeled as acquired “as a result” of interrogation techniques. 

There are also serious concerns over the reliability of intelligence obtained through the use of enhanced interrogation. A study done by Social Issue and Policy Review on the use of torture as a interrogation technique indicate the strategy resulted in unreliable information, mental and emotional tolls on victims, and risks of retaliation against solidiers and civilians. The report concludes that in tense situations, detainees are motivated to lie. 

A form of Torture? 

Jose Rodriguez, a CIA official, drew a distinction between torture and enhanced interroration. He believed that torture was not effective, but the information gleaned from enhanced interrogation was essential in dismantling al-Qaida’s operations.

The Human Rights First Organization disagrees with this claim, citing that International committees and US courts have found that waterboarding, mock executions, and other authorized techniques “violate the protections afforded all persons in custody – whether combatants or civilians – under the laws of armed conflict and international human rights law, and can amount to torture or “cruel, inhuman, or degrading treatment.” The United Nations Committee against Torture and the UN Special Rapporteur on Torture have stated these techniques constitute torture. In addition, President Barack Obama acknowleged the cruelties suffered by detainees at the hands of the CIA, and considers waterboarding a form of torture.

The labeling of Enhanced Interrogation Techniques as torture is important because of the implications. If it is found to be defined as torture, the CIA program was a direct violation of the“anti-torture” laws enacted in 1948 by the Universal Declaration of Human Rights, which the United States help draft. Advocates against EIT insist that criminal laws used to prosecute people on U.S. soil can be applied too torture cases overseas. The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which the United States ratified, requires all parties to “take effective legislative, administrative, judicial, or other measures to prevent acts of torture in any territory under its jurisdiction.” According to Elizabeth Hotzman, a former congresswoman, the law may be applied to anybody including people who engaged in torture outside of the U.S.

On the other side of this debate, some advocates for the practice acknowledge that enhanced interrogation is a form of torture, though claim that enhanced interrogations can be effective in situations where standard interrogation cannot. In 2017, President Trump expressed similar views, and suggested permitting waterboarding because he believes it worked. In addition, there is no mechanism for punishing states for violating the Universal Declaration of Human Rights, so many disagree with the impact of being found in violation. 

The Problem that has Stumped Four Administrations  

The fate of Guantanamo Bay has been a topic addressed by four Administrations in the last two decades. Efforts have been made to close down the detention center which has held nearly 800 suspected terrorists and criminals. Guantanamo remains open first and foremost because the process for reviewing and trying detainees is extensive in order to ensure the individual does not represent a threat to U.S. safety. In addition, it is a polarizing issue mired in partisan politics which has prolonged and, at times, prevented the enforcement of other solutions for detainees. President Obama’s plan to send a number of detainees to the U.S received intense political backlash from Republican senators, and ultimately failed. 

President Bush established Military Commissions to try the first group of detainees brought to Guantanamo and accused of war crimes. During Bush’s Administration, approximately 500 detainees were transferred out of Guantanamo or released. Obama also approved the use of military trials; however, he also enforced Periodic Reviews as a way to re-evaluate the threat posed by Guantanamo detainees who were designated for indefinite detention. According to a 2015 report by IACHR, 8% of detainees were characterized as “fighters” for terrorist organizations.

Currently, detainees can be released from Guantanamo Bay through adjudication from military trials or Periodic Review Boards.

Military Trials

Of those detainees remaining in Guantanamo, the Defense Department reports that 10 are undergoing military commission proceedings, and two detainees have been convicted. Military Commissions are intended to “promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.” according to the Manual for Military Courts. 

Military trials are different to civilian courts in several ways:

• Military trials are not restricted by the Federal Rules of Evidence, extending the types of evidence which prosecutors can display in their testimonies;
• Military Commissions may allow the use of evidence obtained by inhuman and cruel treatment, potentially leading to questions about the credibility of the evidence;
• Military Commissions require more time to reach a conviction compared to civilian courts. It is rare for a Military Commission to reach a decision in fewer than five years. 

The military court and prison at Guantanamo has cost over $6 billion. The yearly cost of the military court and the prison at Guantanamo is $380 million. 

Periodic Reviews

The Periodic Review Board is composed of officials from the Department of Defense, Homeland Security, Justice, and State; Joint Staff, and director of national intelligence. The Board assesses the potential threat detainees might pose on the United States in order to make informed decisions on whether detainees should remain in Guantanamo Bay. 

The Periodic Board allows Detainees to participate in the process review. Detainees work with a military officer to help them through the process. In addition, detainees can request witnesses to offer information regarding whether the detainee should be kept in Guantanamo. If a detainee is found to be non-dangerous to the security of the US, they will be ready for transfer. If they are found to be dangerous they are again held indefinitely. 

Periodic Review gives hope for detainees designated for indefinite detention at Guantanamo. Many critique the Board’s decision making process. According to Benjamin R. Farley, a trial attorney and law-of-war counsel in the U.S. Department of Defense, Military Commissions Defense Organization, “The PRB’s present inability to render any decision other than for continued law-of-war detention is particularly pernicious in light of how the government invokes the PRB’s continued operation to minimize judicial scrutiny of the Guantanamo detention regime in federal habeas corpus proceedings”. 

Transfer of Detainees

As of April 26th 2022, 20 detainees have been approved for transfer. After a detainee has been deemed non-dangerous by the Periodic Review Board, they are confirmed for release. Should the situation permit, some are transferred back to their homeland. If transfer to homeland is not possible for detainees, due to safety reasons or other reasons, the U.S. works with other countries to release detainees. Legislative prohibitions on the transferring of detainees into the United States have prevented approved detainees from being transferred to the United States. The transfer of detainees to other countries, especially in Europe, has become difficult with the rise in anti-immigrant sentiment.

Guantanamo Bay Over 4 Presidencies

Following the September 11th terrorist attacks, then-President George Bush launched the Global War on Terrorism, which sought to protect US citizens from potential terrorist attacks by funding global security and military efforts. The US federal pricetag for the global War on Terror is estimated to be over $8 trillion. This estimated cost includes the funds to build and operate Guantanamo Bay, a detention facility located in Guantanamo Bay, Cuba, which is used to detain of suspected members and affiliates of terrorist groups. 

Since the establishment of Guantanamo Bay, debates have arisen over human rights, safety, and lawfulness. President Obama spent the beginning of his presidency working to shut down Guantanamo, however pushback from members of the Senate prolonged the closure of the center. Arguments against the closing of Guantanamo range from concerns about releasing terrorists or potential terrorists into the U.S. and into other countries, to the high cost of closing Guantanamo Bay. The Obama Administration, however, was successful in enforcing new procedures for handling the detainees. Obama managed to transfer, repatriate, or resettle 197 detainees. Ultimately, his efforts did not see the closure of Guantanamo.

When President Trump took office in 2017, advocates for the closing of Guantanamo Bay had little hope that this would come to fruition. During his campaign, Trump advocated for the continued transfer of people into Guantanamo. As promised, Trump signed an Executive Act to reverse Obama-era policies aimed to shut down Guantanamo and ultimately halted the closure of Guantanamo. Trump’s Executive Order commands the Secretary of Defense and other officials to offer the President new policies “regarding the disposition of individuals captured in connection with an armed conflict, including policies governing transfer of individuals to the U.S. Naval Station Guantanamo Bay” within 90 days. Secretary of Defense Mattis suggested keeping the current U.S. policies on Guantanamo. 

Now, the question of Guantanamo’s fate under President Joe Biden has taken the foreground. 

Biden’s Promises of Closing Down Guantanamo

Before taking office, Biden advocated for the closing of Guantanamo. During a 2016 press conference, Biden was asked about his prospects for successfully closing Guantanamo before the end of his Vice-Presidency. He replied, “that is my hope and expectation”. During his campaign for presidency, Biden promised to close down Guantanamo, though failed to mention in detail his plans for doing so. While Biden’s move into office had given advocates hope for its future shut-down, little tangible change has been seen since the start of his term.

Biden and Guantanamo in 2022

Since 2002, roughly 800 detainees have been held at Guantanamo. As of April 22nd, 2022 37 remained, most of whom will be held indefinitely. Of the remaining detainees, the Department of Defense recorded:

•  18 are eligible for transfer,
• 7 are eligible for a Periodic Review Board to determine whether they pose any threats to the security of the United States,
• 10 are undergoing military commission proceedings,
• and two detainees have been convicted. 

On June 24, 2022 the Defense Department transferred a detainee to his home country, Afghanistan, which reduced the number of detainees to 36. While the steady reduction in detainees is seen as a concrete step towards closing Guantanamo as compared to the last administration’s efforts, progress is slow and it will be a long time before the process is complete. 

Biden’s Low Profile Approach towards Guantanamo—Matter Avoidance or a Matter of Tactic?

The Biden Administration has taken a low profile approach to handling Guantanamo—a notably quieter approach than that of Obama. 

So far into Biden’s presidency, little has been said about his plans for Guantanamo. Some speculate that Biden’s quiet approach is a tactic to minimize political backlash. “President Biden appears to have learned from Obama’s missteps, transferring one prisoner and clearing many without being too loud about it and painting a target on his own back,” Ramzi Kassem, a law professor at the City University of New York, stated. In February, a review board approved the safe release of more than half of the men held indefinitely at the detention facility. Biden has not yet made public the process used in releasing detainees, however it seems the Administration is taking measures to ensure the release of these detainees following Obama-era policies. 

Pushback on Biden’s attempts to close Guantanamo is anticipated in the current political climate. Some believe the United States has the right to keep Guantanamo Bay open since the US is still in armed conflict and Guantanamo might serve a function in helping obtain vital information that will ensure the safety of American citizens. In his testimony to the senate, Cully Stimson, defended the need for Guantanamo, saying “[U.S.] is entitled, under domestic and international law, to detain opposing enemy forces for the duration of hostilities, including the terrorists at Guantanamo”. Others have criticized Biden for his silence on the topic as they “fear a repeat of what happened under President Obama”. 

Is Biden implementing Obama’s Policies on Guantanamo Bay? 

At the start of his presidency, Obama signed executive orders which proposed a timeline for the trial or release of detainees. The timeline was faster than the Bush Administration’s process which proposed trying prisoners through military commissions on a case-by-case basis. Obama’s plan involved securely transferring detainees to home countries or to countries which would accept them, accelerating periodic reviews, prosecuting detainees under federal government jurisdiction, and finding secure locations for some detainees in the United States. Some criticized Obama’s plan to bring detainees into the United States, arguing that it would compromise citizen safety. A second courtroom is under construction, which would allow military commissions to undertake multiple cases at once, accelerating detainee processing.

What does the Future of Guantanamo Look Like? 

It is yet unclear the fate of Guantanamo under the presidency of George Biden. As for future plans: “[Biden’s] Administration is dedicated to following a deliberate and thorough process focused on responsibly reducing the detainee population of the Guantánamo facility while also safeguarding the security of the United States and its allies” says Ned Price, the State Department spokesperson.