Getting Off the Island

Guantánamo Bay wasn't simply a detention facility; it was, in the words of one of its command­ers, "the interrogation battle lab for the war on terror." Under the Pentagon's so-called mosaic approach to information-gathering—in which every little snippet, no matter how seemingly insignificant, is considered a valuable piece of the over­ all picture—virtually all of the detainees were deemed intelligence assets.

So, for a number of months anyway, the U.S. had little incentive to change the status quo on Guantánamo. But as the first anniversary of the prison approached, the terms of detention—indefi­nite, with no charges, allowing those held  no access to lawyers—came under grow­ing scrutiny both at home and abroad. Countries started pressuring the United States to act. "Our line was extremely clear—either prosecute or release our detainees," says Jan Eliasson, who served as Sweden's ambassador to the U.S. from 2000 to 2005. "It was completely unacceptable both legally and morally to have a limbo situation like this."

In the face of growing diplomatic pres­sure, the Pentagon encouraged Prosper to negotiate general agreements with the various governments that had nationals held at Guantánamo. But he was reluc­tant to begin the diplomatic process until there were specific prisoners to discuss. "I didn't want to raise expectations that we couldn't meet," he says. 

By this point, the U.S. had started sorting the detainees into different categories—those who would be prosecuted, those who would continue to be held and those who would be repatriated. Among those eligible for repatriation, a distinction was drawn between detainees slated for "re­lease" or "transfer." Prisoners considered worthy of release had either been erro­neously detained or were low-ranking foot soldiers not thought to pose a dan­ger to the United States. Transfers were more complicated: they were individuals whom the Pentagon still considered dangerous. They would require specific agreements concerning the conditions of their return.

Prosper started the arduous task of ne­gotiating detainee transfers in earnest in early 2003. His first step was to familiar­ize himself with each country's legal sys­tem. "We would go on our trip and literal­ly say, 'What laws do you have to detain and prosecute?' " he recalls. Over time, the U.S. crafted a universal document obligating countries to investi­gate, imprison and/or prosecute every detainee returned to their custody. The Pentagon pushed Prosper to make more demands. They wanted foreign governments to agree to detain transferred prisoners for a specific length of time and to seek U.S. consent before releasing them.

The European countries balked at the stringency of such conditions. They noted that the alleged activities of many of the individuals in question—training to fight for the Taliban—weren't criminal un­der their statutes. Nor were they neces­sarily convinced that the men in question needed to be detained. "Our view was that our detainee wasn't as serious a threat as the Pentagon was thinking," says Eliasson, the Swedish diplomat. "And they couldn't convey to us any points to make us feel differently."

A rift quickly opened inside the adminis­tration over how much the United States should demand of foreign governments before effecting transfers. The Penta­gon's general counsel, William Haynes, urged a hard line; he and other Defense Department officials were concerned that if the conditions weren't stringent enough, transferred prisoners could wind up back in Afghanistan or in Iraq, endan­gering American soldiers. State Department officials were eager to speed up the process. They bore the brunt of the diplomatic friction created by Guantánamo, and had come to see the indefinite detentions as a growing threat to America's efforts to build a broad coali­tion against terrorism. "The diplomatic view was that no self-respecting state is going to have terms dictated to them," says Matthew Waxman, who worked on detainee affairs in both the Pentagon and the State Department. "They each have their own domestic law that we need to respect." This internal divide was no secret to the administration's negotiating partners. 

Aware that State wasn't the main obsta­cle, a number of foreign governments took their cases directly to the Pentagon and the White House. The first year and a half of diplomatic negotiations yielded just a trickle of returns. But in the wake of the prisoner-abuse scandal at Abu Ghraib in the spring of 2004, countries came under increasing pressure from their own constituents to move more aggressively to regain custody of their detainees. 

A couple of months later, an even more sig­nificant event occurred: the Supreme Court issued a stinging rebuke to the Bush administration in Rasul v. Bush. The Court's decision, which gave the detainees the right to challenge their de­tentions in federal court, undercut the White House's principal reason for using Guantánamo Bay as the main clearinghouse for captured combat­ants in the war on terror: the belief that the prison was outside the jurisdiction of the U.S. courts. If the administration could not detain and interrogate prisoners with­out the interference of federal judges, let alone defense lawyers, keeping them at Guantánamo made a lot less sense. In addition, every prisoner in Camp Delta now represented a potential lawsuit against the White House. (Dozens of suits were indeed filed in subsequent months.) The administration was now willing to accept more risk with respect to the return of detainees.

In the wake of Rasul, the administration instituted new hearings at Guantánamo—Combatant Status Review Tri­bunals and Administrative Review Boards—to determine which prisoners 
no longer posed a threat to the United States and could be released. Prosper intensified his shuttle diplomacy while loos­ening the conditions for return. He fo­cused his energy primarily on Western countries that the United States be­lieved it could trust, and with those it felt a greater responsibility to preserve diplo­matic relations.