The Epiphany of Matthew Waxman

by ANDY WORTHINGTON

In a fascinating article for the Washington Post, "The Smart Way To Shut Gitmo Down," Matthew Waxman, a teacher at Columbia Law School, who was deputy assistant secretary of defense for detainee affairs in 2004-05, calls for the closure of Guantánamo, conceding that, although "the ongoing threat of terrorism is very real it does not follow that we must keep Guantánamo Bay open — or even that the prison helps our fight against al-Qaeda."

While refusing to condemn what he tellingly describes as "the improvised decision to create Guantánamo Bay’s detention site in 2002," Waxman insists, nevertheless, that he wants "to challenge its continued operation in 2007," adding, "Fair-minded people can differ over whether the Bush administration was justified in sending suspected al-Qaeda fighters there immediately after Sept. 11, 2001, but as time wears on, it’s almost impossible to argue that the prison is keeping us safer." Referring to President Bush’s declaration last year that "he would like to see Guantánamo Bay closed, if he could do so without putting Americans in greater danger," Waxman concludes, "He can, and he should," adding, "My experience advising former defense secretary Donald H Rumsfeld and Secretary of State Condoleezza Rice on these issues has convinced me that there’s a way out, but it will take some painful truth-telling to get there. For even if Guantánamo Bay could be defended in legal or moral terms, it still hurts us more than it helps us in battling al-Qaeda."

These are significant statements, given added weight by Waxman’s choice of wording: his references to "fair-minded people," to questions of justification, and, in particular, to the legal and moral defense of Guantánamo, in which he chooses to write "even if Guantánamo could be defended," rather than, "even if Guantánamo can be defended." And even his apparent swipe at some of Guantánamo’s opponents, dismissing as "a fantasy" their "soothing notion" that "everyone at the prison is an innocent bystander erroneously swept up in post-9/11 dragnets," is immediately countered by the frank admission that "the Bush administration’s dogged insistence that all the detainees there are the ‘worst of the worst’" is also a fantasy.

Similarly, while defending the "valuable intelligence" obtained from Guantánamo, Waxman admits that much of this information has come "from detainees who haven’t been involved in terrorist plotting for years now," and while critics, who are aware of the appalling isolation in which the majority of the detainees are held, may take exception to the "improved general conditions" he describes, which are "humane by the standards of US and European prisons," he is to be applauded for another frank admission, that "Guantánamo Bay’s defenders hurt their own credibility when they refuse to acknowledge the well-documented abuse that has occurred there."

Waxman’s proposed solutions are not always above criticism, but they are, with a few notable exceptions, generally balanced, and demonstrate a commitment to finding a way forward that maintains national security, but not at the expense of justice. Broadly speaking, this involves "transferring many of the detainees to their home countries, sending some to third countries and bringing the remainder — including those who would be prosecuted for war crimes — to secure facilities in the United States."

While this seems to me to be both sensible and practical, I do have strong reservations about some of Waxman’s other conclusions. He writes, for example, that "the evidence against a particular suspect often can’t be presented in open civilian court without compromising intelligence sources and methods," adding, rather coyly, I think, "Or the evidence may not be admissible under US criminal law rules." What this means is preventing all mention of torture by US forces, whereas this is one Pandora’s Box whose lid will one day have to be prised open and dealt with, if the United States is ever to regain any kind of moral standing. And while few would dispute his point that "a durable, long-term framework for handling detainees" is needed, it’s profoundly disturbing that he seeks a solution that "lets us hold the most dangerous individuals and collect intelligence from them (including through lawful interrogation)." Read between the lines: it means, "also including through unlawful interrogation."

These substantial caveats aside, Waxman’s overall drive — to find a way of "forging a broad agreement about the minimum acceptable conditions for any long-term detention process, firmly within the rule of law" — is to be commended, as a basis for crucial discussions that need to be undertaken. In the end, however, what makes his change of heart so significant is that, back in 2004 and 2005, while he was deputy assistant secretary of defense for detainee affairs, he apparently played a significant role in manipulating the results of at least one of the Combatant Status Review Tribunals, the military reviews convened to assess whether the detainees had been correctly designated as "enemy combatants." Heavily criticized by lawyers and human rights activists for denying detainees access to lawyers and relying on classified evidence based on hearsay, coercion and torture, the tribunals have recently been subjected to severe criticism from former insiders who served on the panels or were involved in compiling the "evidence" used in them.

In the case of Anwar Hassan, one of 22 Uyghur detainees (Chinese Muslims from the Xinjiang province), it was, apparently, on Waxman’s explicit instructions that Hassan, who was cleared in his first CSRT, was subjected to a second CSRT that reversed the decision made in the first tribunal. As I reported in July, Hassan’s lawyers, Angela Vigil and George Clarke, noted that, "[c]ontrary to the government’s suggestion," the change of determination between the first and second CSRTs was not based on "additional classified information," (of which there was none) but seemed, instead, to have been based solely on "communications" from Matthew Waxman "pressing for [a] reversal" of the first CSRT determination.

With the benefit of this information, perhaps the most personally revealing passage in Waxman’s Washington Post article is his confession that "Some of [the detainees] should never have been there (including several supposed jihadists turned over for bounty based on assertions that later proved flimsy)." His corollary, that "such imprisonments have had tragic and dangerous consequences," is therefore welcome, as are the concluding lines of his article, in which he writes, "Both of these proposals — shutting Guantánamo Bay and establishing robust judicial review of detentions — carry risks. But those risks should kick-start the discussion, not end it. Detention policy is not about eliminating dangers, but about balancing and managing competing dangers. And keeping Gitmo open — sapping US prestige, alienating our allies and handing al-Qaeda a propaganda tool — carries downsides, too. Civil libertarians and security-minded hawks will both no doubt criticize these suggestions. But it’s past time to close Guantánamo Bay. Rumsfeld, my former boss, famously described the prison in 2002 as the ‘least bad option.’ Whatever the validity of his assessment then, my plan for shutting Gitmo is less bad now."

As one of these "civil libertarians" myself, I may surprise Matthew Waxman by fully endorsing his attempts to kick-start a meaningful dialogue about Guantánamo and the treatment of prisoners captured in the "War on Terror," even if I do not agree with all his conclusions. I also note, however, that by repudiating claims by the administration that Guantánamo houses the "worst of the worst," by conceding frankly that profound mistakes have been made (which implicitly condemns the administration’s claims that those who are cleared for release are not innocent, but are, instead, "No Longer Enemy Combatants"), and by highlighting the damage caused to the reputation of the United States, Waxman has, in many significant ways, actually joined the "civil libertarian" camp.

Far from insisting that everyone in Guantánamo is an "innocent bystander" — though many hundreds are, and many hundreds more were no more than foot soldiers in an inter-Muslim civil war which preceded 9/11 — lawyers and human rights activists have maintained, for nearly six years now, that, whether "terrorists" or not, the only legitimate way to establish the facts and to proceed with prosecutions is to work within existing laws, and not to invent alternatives, which, like the reviled tribunals on which Waxman has eventually cast a critical eye, have more in common with repressive dictatorships than with the principles on which the United States was founded.

ANDY WORTHINGTON is a British historian, and the author of ‘The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison’ (to be published by Pluto Press in October 2007). Visit his website at: www.andyworthington.co.uk

He can be reached at: andy@andyworthington.co.uk

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