CP Note: The November 25, 2001 revolt at Qala-i-Jangi played a key role in the decision to build a remote holding site for specific operatives. This piece discusses the decision on where to build that facility. 

On December 11, 2001, in what appears to have been a case of conscious indirection, Secretary of State Donald Rumsfeld told journalists that the administration was still mulling the decision about where to hold detainees. Afghanistan, U.S. shipboard, the detainees’ countries of origin, and locations in the United States were all under consideration. In fact, by early December, Guantánamo had emerged as the administration’s clear first choice. All other candidates were deficient in one way or another—U.S. sites for not-in-my-backyard political reasons; foreign outposts because the Pentagon could not take for granted even allied support for the kind of interrogations it envisioned; U.S. protectorates such as Guam because they lacked immunity from federal court oversight and were open to lawyers and journalists; finally, Afghanistan, because it was still far from stable. Guantánamo met all these objections. Sovereign territory of a hostile state, it offered U.S. military personnel legal and diplomatic immunity. The U.S. military strictly controlled access to the base, securing it from prying eyes and enemies alike. Defense Secretary Rumsfeld later characterized Guantánamo as “the least worst place.” But allowing for the inconvenience entailed in transporting prisoners halfway around the world, Guantánamo seemed an obvious choice to many U.S. military officials.

Many, but not all. Establishing a pattern that would hobble the war on terror for the better part of a decade, civilian officials atop the Pentagon settled on Guantánamo as the site for a detention camp only after studiously ignoring the expert counsel of career military officials such as Norman Rogers. To Rogers, Guantánamo was absolutely not the place for such a mission. To begin with, having worked in naval intelligence, Rogers knew that secrecy was paramount in detainee operations, and that there could be no secrecy at Guantánamo Bay. As more candid U.S. military personnel had long since acknowledged, the naval base was surrounded by Cuban high ground. Perched on nearby hills, “every camera-toting Cuban tourist and his sister enjoyed comprehensive views of everything that went on at the base. Cuban intelligence had photographs of every single person who stepped off a US plane.”

Furthermore, the logistics and the cost of building, manning, and maintaining a prison on a base cut off from Cuba and nearly a thousand miles distant from the United States were prohibitive. Every piece of building material, from the smallest tack to the largest bulldozer, had to be shipped to Cuba by boat or plane. And this was as true of human resources—soldiers, interpreters, interrogators, analysts, and the associated service personnel—as of construction material. The base had limited infrastructure and no hotels to accommodate the associated hordes. Construction at Guantánamo was “four times as expensive as at home, and ten times more difficult to complete.” War would only compound the logistical hurdles, as the buildup in Afghanistan monopolized cargo planes and transport ships alike. Finally, Rogers recognized, “there was the moral and legal risk of putting US servicemen and women above the law.” For years the Army Field Manual had provided the military with an unequivocal code of moral and legal conduct. To choose a detention site where the manual might not apply was to expose military personnel to legal persecution. In short, from beginning to end, as Rogers saw it, the plan to use Guantánamo for detention and interrogation was ill-advised. “Better to simply declare the detainees enemies of the state and dump them in Leavenworth,” he remembers thinking to himself. “Nobody would have even noticed.”

Rogers passed his arguments up the chain of command. How high those arguments proceeded is anybody’s guess. As rumors that Guantánamo was in the running subsided, Rogers assumed that his opinion had been heard. He was wrong. In mid-December, SOUTHCOM received notice that Guantánamo was a finalist along with Guam as a detention site for the war on terror. Each command was to submit a proposal making the case for their place. “We really jumped on the opportunity,” Jeff Johnston explained. Though not intimately involved with Caribbean operations, Johnston was a navy man. “I eagerly shoved myself into the process, offering advice about construction costs.” By contrast, PACOM, the Pacific Command that oversaw the base at Guam, “didn’t want the prison.” Much closer to the theater of battle, they “had bigger fish to fry.”

On December 23, 2001, six Learjets touched down on the runway at Leeward Point. If the Cubans were indeed watching, they saw exiting the planes a group of American politicians, dignitaries, and line officers that included Marine Corps general Michael R. Lehnert, veteran of 1990s migrant operations at Guantánamo, and the man slated to become the first commander of Joint Task Force 160, the unit in charge of detainee operations. Lehnert would not divulge whether or not JTF 160 was coming to Guantánamo. Rogers showed him around the base, taking him to sites that had been in use during the recent migrant operations. First they toured “Camp X- Ray,” located at the end of Sherman Avenue, down the road toward the northeast gate. This site had been used as a short-term holding facility to isolate recalcitrant refugees and for Cubans who, having failed the screening process, were slated to return to Cuba. Forty primitive eight-foot- square chain-link cells remained at Camp X- Ray, catching Lehnert’s attention. Years of neglect had left the cells in bad shape. Then the group proceeded to Radio Range, the largest continuous chunk of flat, developable property on the base, located over the hills and away from the heart of the naval community along the Cuban coastline. Formerly the site of some of the largest refugee camps, Radio Range retained plumbing and electrical infrastructure but little else.

In fact, Rogers and his colleagues tried to impress upon Lehnert that the place to situate a prison at Guantánamo, if at all, was Leeward Point, across the bay, away from the base population. There the JTF would enjoy freedom of movement and immediate access to the air-field in what was bound to be an “airfield mission.” With no infrastructure in place on Leeward Point, Lenhert wasn’t impressed. “You can’t build a prison fast enough there,” he told Rogers, providing a hint of what was to come. Besides, Lehnert didn’t like the thought of his troops being isolated from the main naval community, including its many restaurants and recreational facilities. Leaving his chief of staff, the marine colonel William Meier, behind him, Lehnert departed Guantánamo late that day, his mind apparently made up. The next day, Christmas Eve, Rogers’s phone rang yet again: “ Start construction on the camp.”

For Rogers and his staff, Christmas became a working holiday. All future holiday leaves, including Rogers’s own, were immediately canceled. Folks already on vacation were summoned back. Even after they returned, Rogers and his crew were on “continuous mode,” he remembers, “with each of us doing the work of two.” As with every construction project at Guantánamo, the first task was to identify material and resources already at hand. Within minutes, Rogers embarked on the wholesale harvesting of chain-link fence from all over the base. They were soon in possession of hundreds of eight-by-eight-foot fence pallets that mirrored those used to construct the original Camp X- Ray. The size of the cells at X- Ray became the immediate object of criticism from inmates, activists, and even guards, who found them more suitable for animals than for human habitation. But the small size had nothing to do with exacting vengeance on the alleged perpetrators of 9/11. Rather, it reflected the way construction happened at Guantánamo, the new being built on top of the old with materials already at hand. “At no point,” Jeff Johnston observed, “did engineers or architects grab a blank sheet of paper and say, ‘Okay, where’s the best place, what’s the best way, to build a camp?’ That’s a luxury public works officials at GTMO never had.”

Rogers and his crew worked away reconstituting fencing and welding “cages” amid immense pressure from the Pentagon, which called in every twelve hours to check on the status of the construction. On December 29, Rogers learned that the prisoners would arrive in two weeks. “We’ll be ready,” Colonel Meier assured his boss. “If necessary, we can bind detainees back-to-back, surround them in concertina wire, and guard them with M16s.”

On Friday afternoon, January 11, 2002, after three weeks working at breakneck speed all the while enduring the Pentagon’s constant badgering, Rogers and his crew were down on a dock of the bay celebrating the completion of 120 cells over some beers when a bus swept past escorted by military Humvees. The first detainees had arrived. Rogers was satisfied that he and his men had done the best they could with the materials at hand. Still, he knew that Camp X- Ray was inadequate to the task. For one thing, intelligence gathering would be exceedingly difficult in a setting where there was no isolating the detainees from one another, short of silencing them at gunpoint. For another, the ad hoc layout of the camp made moving detainees from cells to showers to interrogation rooms and back again inefficient, even dangerous. Moreover, the lack of basic infrastructure—of toilets in the cells, for instance, and the substitution of buckets—set the stage for future altercations between prisoners and guards. Finally, if bad for the prison population, conditions at X- Ray weren’t much better for the guards. “It took nearly a month for us to get the showers running in the tent city” that housed the guard force, Rogers noted. “We knew that X- Ray sucked,” Jeff Johnston allowed; “it simply didn’t meet our needs.” From a “mission standpoint,” Rogers observed, “ X- Ray was a dumb place.”

So how, again, did the prison camp end up there? The answer, Rogers believes, has to do with a combination of factors. On the one hand, there was the general “arrogance” of Bush administration officials, who refused to entertain opinions different from their own. “We know what to do,” said Rogers, mocking Pentagon chiefs; “now we’re going to ram it down your throats.” On the other hand, and related to this, was a more specific desire to consolidate all aspects of national security policy in the hands of political appointees atop the Pentagon, including intelligence gathering and interrogation, formerly the province of the FBI and the CIA. To pursue intelligence as thoroughly as the Pentagon envisioned would require legal cover— finding a place where the law did not apply. Sovereign territory of Cuba and hitherto ruled to be beyond the reach of federal courts, Guantánamo became the place.

But even here, as in the other ways that Guantánamo seemed like a good place to house a prison, the evidence was equivocal. Office of Legal Counsel deputy assistant attorney general John Yoo has been criticized for exemplifying the arrogant, go-it-alone style that characterized Bush administration foreign policy in the wake of 9/11, and for writing legal memos whose advocacy displaced dispassionate advice. In the case of the December 28, 2001, Guantánamo memo, which Yoo describes as more like “a litigation strategy memo” than a close reading of existing law, his analysis was more cautious. In this memo, while defending the constitutional immunity of Guantánamo Bay, Yoo anticipated the path by which due process and habeas corpus would make their way onto the naval base despite his own and his bosses’ fervent objections.

In the Guantánamo memo, Yoo focused partly on court cases stemming from the migrant operations of the mid-1990s. The 1990s Guantánamo cases did not in fact address the question of habeas corpus (the Haitians and Cubans who passed through the base were not, formally speaking, detainees); rather, they were essentially debates about the applicability of due process—of the refugees’ right to legal counsel. Administration officials believed that courts unwilling to grant refugees the right to counsel at Guantánamo were unlikely to extend habeas protection to al Qaeda or Taliban prisoners detained there. At stake was a cornerstone of Bush administration national security policy. “If a federal district court were to take jurisdiction over a habeas petition” emanating from Guantánamo Bay, Yoo warned Defense Department general counsel William J. Haynes, “it could review the constitutionality of the detention and the use of a military commission, the application of certain treaty provisions, and perhaps even the legal status of the al Qaeda and Taliban members.”

Yoo found the odds of a court assuming jurisdiction at Guantánamo unlikely. As evidence, he pointed to a Supreme Court ruling denying habeas to German agents seized and tried by American officials in China and imprisoned in Germany in the aftermath of World War II. Aliens held in U.S. territory have indeed been granted habeas rights, the High Court acknowledged in Johnson v. Eisentrager (1950)— “presence in the country implied protection”— but such was not the issue in the case at hand, where the German prisoners remained outside U.S. “sovereign” territory, and where “the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.”

Yoo assumed that the Court’s logic in Eisentrager would apply at Guantánamo Bay, where the lease by which the United States occupied the base distinguished Cuban “sovereignty” from U.S. “jurisdiction and control.” Yoo conceded that the majority in Eisentrager appeared to conflate sovereignty and jurisdiction, possibly implying a “ two-part test.” But he insisted that this was not the Court’s intention. The Court’s meaning was unmistakable: where another country is sovereign, U.S. law does not apply. For confirmation, Yoo pointed to an earlier case affi rming Cuban sovereignty at Guantánamo Bay (Vermilya- Brown Co. v. Connell, 1948), as well as to the more recent ruling in the Haitian and Cuban refugee cases (Cuban American Bar Association, Inc. v. Christopher, 1994), where the Eleventh Circuit Court of Appeals denied federal jurisdiction at Guantánamo Bay.

In making the case for Guantánamo, Yoo ignored some inconvenient facts. For example, invoking Eisentrager to bolster the argument against habeas jurisdiction at Guantánamo Bay, he slighted important differences between the two cases. In Eisentrager, for instance, the plaintiffs had been seized and tried in China and imprisoned in Germany, locations whose legal status was never in doubt and where the plaintiffs had an opportunity to defend themselves before a military commission. Compare that with a remote corner of Cuba over which the United States exercises defacto sovereignty and about which a supposedly sovereign Cuba has nothing to say, and the analogy to Eisentrager seems to wear thin. Combine this with the fact that no legal process recognized as valid anywhere on earth constrained U.S. treatment of detainees at Guantánamo Bay, and the analogy unravels.

Nor was the precedent from the 1990s Guantánamo cases rock solid. Lower courts had repeatedly ruled against government assertions of a lawless Guantánamo. Though such rulings were ultimately vacated, at the very least they demonstrated an inclination among some federal magistrates to extend constitutional protections to executive actions undertaken in the absence of alternative legal recourse. According to Yoo, such meddling violated a key constitutional tenet that federal courts should steer clear of political questions unless authorized by congressional statute. The treatment of detainees was a case in point, and the president exercised authority “pursuant to the President’s Commander- in- Chief and foreign affairs powers,” Yoo wrote. “Without a clear statement from Congress extending jurisdiction to [Guantánamo Bay], a court should defer to the executive branch’s activities and decisions prosecuting the war in Afghanistan.”

This is the gambit on which Yoo staked much of his legal advice in the aftermath of 9/11. In the undeclared and open- ended war on terror, the president could do whatever he saw fit. “By definition, if it was authorized by the president,” former national security advisor and secretary of state Condoleezza Rice told an audience in April 2009, in reference to Bush administration interrogation policy, “it did not violate our obligations under the Convention Against Torture. When the president does it, that means it is not illegal.” This argument makes many federal judges uneasy. Few contest the president’s expanded powers in wartime, but those powers do not extend indefinitely. The president remains answerable to law.

Confident in his opinion, Yoo confessed doubt about the drift of the courts. Although “a district court cannot properly entertain an application for a writ of habeas corpus by an enemy alien detained at Guantánamo Bay Naval Base, Cuba,” he argued, recent Guantánamo litigation suggested that “the issue has not been defi nitively resolved by the courts.” Thus, Yoo cautioned Haynes, “there is some plausibility that a district court would entertain such an application.” Throwing caution to the wind, Haynes and his boss Defense Secretary Rumsfeld ordered prisoners brought to Guantánamo Bay early the next year.

Guantánamo: An American History by Jonathan M. HansenExcerpted from Guantánamo: An American History by Jonathan M. Hansen.

Copyright © 2011 by Jonathan M. Hansen.

Reprinted with permission from the publisher.

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