Late one night in February 2004, the U.S. ambassador for war-crimes issues, Pierre-Richard Prosper, and the Danish ambassador to the United States, Ulrich Federspiel, sat in the living room of Denmark's ambassadorial residence in Washington ironing out the details of an agreement to repatriate Guantánamo's only Danish detainee. His name was Slimane Hadj Abderrahmane, and while he had drawn little attention in the United States, his fate had been the subject of intense negotiations between Danish diplomats and a group of high-ranking American officials, including Prosper, Undersecretary of Defense Paul Wolfowitz and the White House National Security Council's legal adviser, John Bellinger.
The son of a Danish mother and Algerian father, Abderrahmane had been a money courier for a rebel Islamist group in Algeria before being picked up near the Pakistan-Afghanistan border in the aftermath of 9/11. The Pentagon believed he was a committed jihadist. The U.S. had initially wanted Copenhagen to commit to try and/or detain Abderrahmane, but the Danes deemed the Pentagon's evidence against him weak. Danish intelligence agents' own interrogations of Abderrahmane at Guantánamo did little to bolster the case for prosecution. If the Danes wouldn't hold or prosecute him, U.S. officials at least wanted him closely monitored. They were concerned that the Danish government would lose track of Abderrahmane, and that he might slip easily through the porous European borders and return to the battlefield. The Danes said they had no legal basis to do this, either.
The shuttle diplomacy between Washington and Copenhagen continued for months. As the talks dragged on, the Danes turned up the heat on the U.S. to make a deal. They had an important bit of leverage: Denmark was one of America's most dedicated allies in the increasingly unpopular war in Iraq.
The two sides eventually hammered out the broad outlines of an agreement. If necessary, the Danes would use the country's extensive welfare system to track Abderrahmane. It was a far cry from prosecution, but it was the best the U.S. was going to do. Prosper and Federspiel did the final wordsmithing in Federspiel's residence near the National Cathedral. "We were operating under the assumption that this guy could literally be walking out the door in Denmark in 24 hours," Prosper recalls.
By this point, a Danish plane was already en route to Guantánamo to pick up Abderrahmane. Prosper and Federspiel finished at a little after midnight, sent off the agreement to Copenhagen and opened a bottle of champagne.
The public impression is that the debate over repatriating detainees has only just begun. In fact, the agreement with the Denmark was only one of many behind-the-scenes negotiations between U.S. officials and their foreign counterparts that have been going on since late 2002. That largely hidden chapter of diplomatic history—and the mixed results it yielded—illuminates the challenges Obama faces as he races to close Gitmo down. "Over five or six years, we had a multiple-ring circus of negotiations around the world that people really didn't know about," says John Bellinger, who helped spearhead those efforts, first at the National Security Council and later as legal adviser to then-secretary of state Condoleezza Rice. "I analogize it to the old duck metaphor: we were calm above the surface but furiously paddling our feet below the surface."
The paddling grew more furious with each passing year, as Guantánamo—and America's treatment of detainees in general—became an ever-expanding public-relations nightmare for the U.S. government. Concerns about what, precisely, would happen to the prisoners once they left Guantánamo gave way to a resolve to get them out, as quickly as they could. It was a mammoth diplomatic task: Prosper, the State Department's initial lead negotiator, spoke with diplomats from all of the 44 countries represented in Camp Delta save for Syria. The process, which under Bush resulted in the return of some 550 detainees, revealed the hard truth that the new administration now confronts: there is no good way out of Guantánamo.
The traditional approach to dealing with captured combatants is to hold them until the end of hostilities. But it quickly became clear that this war, the war on terror, could last for generations. By late 2002, some U.S. officials were beginning to question whether they were going to be able to hold the Gitmo detainees indefinitely. The administration started taking its first, tentative steps toward returning some of them to their home countries.
Prosper, the son of Haitian immigrants and a former prosecutor at the international war-crimes tribunal in Rwanda, spearheaded the effort. "I would send out a cable to all of the foreign governments that basically said, 'We've got your guys'," he recalls. "'If we were to return them, what are your intentions, what would you do with them?'"
The initial response was tepid. Given that Defense Secretary Donald Rumsfeld was describing these men as "terrorists"—"the worst of the worst"—it was perhaps not surprising that most countries were more than happy to have them outside their borders and in U.S. custody. Several governments raised doubts about whether the detainees in question had been correctly identified. They asked for more information, or even requested to speak to the individuals themselves. Nor was the Bush administration in a big rush to begin the process.
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.
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.
The Saudi ministers proposed a possible solution to Prosper and Waxman. The country was developing a rehabilitation program for former jihadists. Respected clerics would basically reeducate the men, explaining to them that the Qur'an does not, in fact, sanction murder. In addition, the Saudi government would try to ease their transition back to normal life by helping them find jobs or go back to school.
The United States wasn't sure what to make of the idea: could it really succeed at defanging hard-core jihadists? "No one in the government had any illusions [about the program]," says Waxman. The Saudis continued to lobby American officials, though, and the U.S. ultimately decided to transfer some detainees into it.
Almost everyone now agrees that Guantánamo is not just doing serious damage to America's international reputation; its continued existence has in all likelihood become a valuable propaganda tool to Islamic fundamentalists. Put in starker terms, a detention facility that was intended to help protect America from another terrorist attack may well be increasing the possibility of one.
But the problem remains: what to do with detainees who are not suitable for trial? The Bush administration had no luck persuading third-party governments to absorb them. "We heard from a number of countries who were unhappy that the Bush administration had not expressed a desire to close Gitmo," says Emi McLean, who works on Guantánamo issues for the Center for Constitutional Rights.
Obama isn't finding the task a lot easier. While he has earned some good will by denouncing torture and promising to close the prison, it's hard to believe many third-party countries will be willing to commit to repatriating any detainees unless the United States agrees to take some in itself. This will be a tough sell: witness Congress's recent rejection of Obama's defense-budget request that included funds to transfer prisoners to U.S. soil. Meanwhile, the president's supporters in the human-rights community are growing impatient. "Obama has certainly set a new tone, but what has he actually done?" asks David Remes, the legal director of Appeal for Justice, which represents a number of Guantánamo detainees.
In a sense, Bush not only created the Guantánamo mess; he left the toughest work for Obama. About 60 of the 240 detainees remaining on the island have been cleared to leave, but many of them—citizens of Uzbekistan, Tajikistan, Algeria, Libya and Tunisia—have said they don't want to be sent home because they are worried about being tortured. The U.S. has a legal and moral obligation to honor their requests. They remain on Guantánamo not because of who they are but because of where they are from.
By far the largest population left on Guantánamo is from Yemen, a poor, volatile nation with a deeply entrenched culture of jihad. Al Qaeda is gaining strength there. At the same time, extremists continue to escape from Yemeni prisons, and the country may very well be on the brink of civil war. Yemen has been known to torture its citizens as well. Obama is no doubt wary about returning detainees to such an environment—all the more so because it's certainly possible that after years at Guantánamo, individuals who weren't previously inclined toward violent acts of anti-Americanism may now be.
The issue of released detainees joining or rejoining the fight against the U.S. and its Coalition partners is a difficult one to get a handle on. During the Bush years, the Pentagon reported periodically on Guantánamo recidivism. But these reports were conspicuously murky and short on supporting evidence. A recent New York Times story about the latest Pentagon report, which has not yet been released, didn't do much to clear up the confusion: 45 of the 74 released detainees who have allegedly returned to the fight were unnamed.
Even one prisoner taking up arms anew is too many. But something is going to have to give if Obama truly intends to meet his self-imposed deadline to close the much-maligned prison before Jan. 20, 2010. "It's a mistake to think that there are any risk-free solutions with respect to Guantánamo," says Waxman. "It's all about balancing the competing risks."
Mahler is a contributing writer for The New York Times Magazine and the author
most recently of The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power.