Guantanamo

As one of his first acts in office, President Barack Obama has appointed a working group to design detention policy now that Guantanamo is to be closed. For those confronting this daunting challenge, it might prove instructive to look at Guantanamo's very beginnings - a time when lawyers, military officers, and others tried to adhere to the legal standards with which they had been trained and to dissent from a policy that has since come to shame the country. The story of those early days, which I endeavored to tell in The Least Worst Place, is that the international law governing prisoners of war is far more flexible than lawyers and policy makers in the Bush administration claimed. Moreover, adhering to those laws might ultimately have created far fewer problems than neglecting them has.

On January, 11, 2002, the first group of detainees arrived at Guantanamo Bay, Cuba. Waiting to receive them was Joint Task Force 160, led by Marine Brigadier General Michael Lehnert. To its dismay, the 160 was told that the customary laws did not apply, and that as a result there was no established policy to guide their efforts. One overarching directive was made clear, though -the Geneva Conventions were inapplicable. General Lehnert and his troops could follow the spirit of the Conventions, but they were not to consider them to be binding law.

For the military, this guidance proved immensely problematic. Without regulations with which to comply, how were they to know what practices to put in place to tend to the custody of the detainees? In this legal void, ostensibly freed from the authority of law, the JTF command staff looked to military lawyers for answers. Accordingly, attorneys at Guantanamo and at U.S. Southern Command struggled to make some sense of this legal vacuum. At SOUTHCOM they worked around the clock constructing a chart of all 143 provisions of Geneva III and specifying which requirements might or might not apply to the prisoners scheduled to be held at Guantanamo. Meanwhile, lawyers at the Pentagon and the Department of Justice (DOJ) were similarly trying to set policy guidelines for the captives - as the string of the DOJ's Office of Legal Counsel memos that later came to light make clear - to justify the exception of the captives from prisoners of war status.