The Pentagon official in charge of Guantanamo Bay has admitted that if he had his time over, he would have argued that the notorious detention camp should never have been built.
William Lietzau, America’s Deputy Assistant Defence Secretary for Detainee Affairs, told The Mail on Sunday in an exclusive interview that Guantanamo’s detainees should have been legally designated as prisoners of war and held in Afghanistan, or if charged with crimes, taken to prisons in America.
Mr Lietzau – who, after three and a half years in his job, last week announced he will be stepping down to take a private sector job in September – added that the best way for President Obama to close Guantanamo would be to announce that the ‘war’ with Al Qaeda is over.
Under international law, this would end any justification for continuing to hold prisoners who had not been charged with crimes.
Lietzau’s words will be seen as explosive, because alone of senior officials who serve the Obama administration in this field now, he played a key role in creating Guantanamo under George W. Bush.
As a senior military lawyer from early 2002 to mid-2003, he designed the Guantanamo ‘military commissions’ – special tribunals set up to try terrorist suspects.
These have proved a dismal failure. Their rules have repeatedly changed, and more than a decade after five men accused of plotting 9/11 were captured, their case is bogged down in pre-trial hearings which have no end in sight.
Mr Lietzau said that if he were advising the Bush administration now, ‘I would argue that detainees should be kept in Afghanistan, or, if moving them is necessary, then into the United States. If I could change one thing in Gitmo’s past, I would have called them prisoners of war from the beginning.’
That, he said, would have meant their legal status would have been clear from the outset. They would also have been covered by Common Article Three of the Geneva Convention, which was not applied to Guantanamo detainees until a Supreme Court decision in 2006.
Many legal critics say that it was America’s failure to recognise Geneva after 9/11 which opened the road to torture and prisoner abuse. Mr Lietzau admitted: ‘There were people who were treated badly, and this is not something we are proud of.’
However, he insisted such abuse had stopped, saying that some detainees had become adept at making false allegations. ‘They know that we look into every credible allegation, and that absorbs an enormous amount of manpower and effort . . . With Gitmo, the amount of deceptive smoke overwhelms the tiny amount of fire from years ago.’
He declined to be drawn as to whether anyone should still be prosecuted and tried under the military tribunal system he helped create.
But he added if any more detainees beyond the six currently facing military commissions were to be charged, it might well be better to do this in ordinary federal courts. ‘They have many advantages, such as the number of offences which can be prosecuted in them.’
Lietzau agreed that restrictions imposed by Congress on releasing or transferring detainees have ensured that progress towards closing Guantanamo has ground to a halt.
The answer, he said, was take a more radical step. ‘Just like you can’t kill your way out of this war, you’re not going to transfer your way out of Gitmo.
‘The really hard question is, “How do you end this war?”
Once you do, we legally have to let them all go, other than those we prosecute.’
He said Bush’s term ‘the global war on terrorism’ had suffered from a lack of clarity, suggesting that it might be effectively limitless.
‘The struggle with terrorism is not going to end. But we do have to end the legally cognizable armed conflict with Al Qaeda, a specific transnational group.
‘Arguably, if the war aim of diminishing Al Qaeda’s ability to mount a certain level of attack has been achieved, we could declare an end to hostilities and return to dealing with the threat as a law enforcement matter.’