Getting Off the Island

Prosper had soon struck deals for the transfer of nearly all the detainees from the six European nations represented at Guantánamo: Britain, France, Sweden, Den­mark, Belgium and Germany. With respect to numerous other coun­tries, an added and no less serious issue loomed: the possibility that the men in question might be abused upon their re­turn. This was not merely a human-rights concern; it was a matter of international law. 

Under a treaty known as the Convention Against Torture, to which the United States is a party, it is illegal for a signato­ry to send an individual to a country where he or she is at serious risk of be­ing tortured. In some instances, the problem proved intractable. A year of negotiations with China over the return of a group of Muslims from the country's Uighur ethnic  minority went nowhere; U.S. officials did­n't believe that they wouldn't be tortured. Nor were any of the detainees from Uzbekistan returned. But in other cases—Libya, Tunisia, Egypt, Morocco, Al­geria and Russia, among them—the United States decided to test the waters. The results have been uneven. In Libya and Tunisia, former Guantánamo de­tainees have reportedly been abused, subjected to unfair trials or simply disap­peared into domestic prisons.

The trouble is that there is no way for the U.S. to hold countries accountable for what happens to detainees once they're released. The Danes held up their end of the bargain with the U.S.; when Abderrahmane recently went public with his intention to fight alongside the rebels in Chechnya, Danish security persuaded him to reconsider and confiscated his passport.

But things played out very differently in the case of seven Russian detainees who were transferred home from Guantanamo in March 1, 2004. The Russian government had told Prosper that the men would be held and prosecuted, and they were in­deed imprisoned upon their return and charged with participation in a criminal conspiracy and unlawful crossing of the national frontier. Within a matter of  months, though, the charges were dropped for lack of evidence, and the men released. Prosper was surprised.

But that was not the end of the story. Hu­man Rights Watch has reported that all seven of the men were subsequently rearrested--and tortured. The most se­verely abused was Rasul Kudaev, who was picked up in October 2005 for al­legedly participating in an attack on sev­eral government buildings in southern Russia. (Kudaev says he was wrongfully accused.) According to Kudaev's lawyer, who visited him in prison shortly after his arrest, one of his legs had been broken and his face beaten to the point of disfigurement. (Russia has not publicly addressed the issue). 

As concerns about the treatment of transferred detainees grew, the State De­partment replaced the Pentagon as the voice of caution. In early 2008, Prosper's successor, Clint Williamson, who was ap­pointed U.S. ambassador for war-crimes issues in 2006, waged a successful internal bat­tle to prevent the Bush administration from returning a number of additional prisoners to Libya and Tunisia. The blocked transfers were a victory for human-rights groups that have opposed using diplomatic assurances from un­trustworthy governments as the basis for returning prisoners. "In case after case, these diplomatic assurances have proved to be totally ineffective and cyni­cally made," says Joanne Mariner, the di­rector of terrorism and counterterrorism at Human Rights Watch. "They're often just a fig leaf for the governments on both sides."

In the summer of 2005, Prosper and Waxman flew to Kabul and Riyadh to ne­gotiate the return of two of the three largest prison populations on Guantánamo. The two capitals posed very dif­ferent problems. A war was still raging in Afghanistan, with indigenous fighters, the Taliban, battling U.S.-backed forces. Re­turning detainees, many of whom had al­ready been accused of fighting alongside the Taliban, to this environment seemed inherently risky—all the more so because Afghanistan remained a nascent demo­cratic state with a fragile infrastructure. The Justice Ministry and Police Department were works in progress, and the country's prisons lacked the capacity and manpower to house the 100-plus Afghan detainees: could the country even han­dle the returning prisoners?

For its part, Afghanistan's position with respect to the detainees had changed dramatically since the first prisoners ar­rived at Guantánamo. In 2002, when Prosper and Bellinger, who was then serving as legal adviser to the National Security Council, met with Afghanistan's foreign minister, Abdullah Abdullah, at Blair House in Washington, he had said his country was not prepared to take back the detainees. By the summer of 2005, though, President Hamid Karzai was actively pressing President Bush for their return. It was still not clear precisely how the returning detainees would be classi­fied—Afghan officials were divided over whether they should be treated as crimi­nals or as captured combatants in the ongoing war with the Taliban—but either way, Karzai was anxious to assert his nation's sovereignty. And bringing the Guantánamo detainees home would give him leverage in his efforts to negotiate truces with some of the more moderate elements of the Taliban.

Over the course of several days, Pros­per, Waxman and the U.S. ambassador to Afghanistan, Ronald Neumann, finalized the terms of a deal with Karzai. The U.S. would build out an existing prison in Afghanistan to accommodate the Guantánamo detainees, as well as equip and train guards to watch them. In exchange, Karzai agreed that his government would at least review the prisoners' files and consider prosecuting them.

From Kabul, Prosper and Waxman trav­eled on to Riyadh. A handful of Saudi detainees had been transferred back a couple of years earlier—a few remained in prison without charges, the rest had been tried or released—but the Saudis still represented the single biggest popu­lation at Guantánamo. Twenty-five Saudi detainees had recently been cleared for transfer, and the U.S. was eager to close the deal.

The problem was that the Saudi govern­ment was already dealing with a rising tide of fundamentalism that posed a very real threat to the kingdom. The regime would need to treat returning prisoners—many of whom had no doubt been further radicalized over the course of their time at Guantánamo—carefully. They had to avoid provoking the country's extremist elements, while at the same time pre­venting the detainees from joining the fight against the kingdom.