MR. TOM GJELTENThanks for joining us. I'm Tom Gjelten of NPR, sitting in for Diane Rehm. She's on jury duty today and she'll be back tomorrow. Ten years ago, the first 20 terrorist suspects were sent to Guantanamo Bay, Cuba. President Obama vowed to close the detention facility, but Congress put up road blocks, the courts upheld indefinite detention and the future of the prison and its remaining inmates remain in limbo.

MR. TOM GJELTENJoining me in the studio to discuss the status of Gitmo are David Cole, professor of law at Georgetown University Law Center, John Bellinger, a lawyer in private practice and former legal advisor for the Department of State under Condoleezza Rice and Marc Thiessen, a fellow at the American Enterprise Institute. He's also a former speech writer for President George W. Bush and Defense Secretary Donald Rumsfeld.

MR. TOM GJELTENYou can join the conversation. We'll be taking your calls throughout the hour and comments. Call us at 1-800-433-8850 or send us an email. It's drshow@wamu.org. You can also join us, of course, on Facebook and Twitter. But right now, we're going to go Congressmen Adam Smith from Washington state. He's a democrat, the ranking member on the House Armed Services Committee and he's joining us on the phone. Good morning, Congressman.

REP. ADAM SMITHGood morning. Thanks for having me on.

GJELTENWell, as we've said, President Obama wanted to close Guantanamo and he found that there really wasn't much support for that in Congress, including from his own party. Can you explain, Congressman Smith, why there has been opposition even within the Democrat party to closing Guantanamo?

SMITHI think -- sure. What happened -- first of all, I make clear I support the President. I think...

GJELTENOkay.

SMITH...we should close Guantanamo. I've argued that for the last couple of years and fought the provisions that Congress has put in to block it. But the biggest thing that happened, the, you know, the Republicans started it and then some Democrats agreed with the argument. It became not so much about closing Guantanamo as where do you send the prisoners...

GJELTENRight.

SMITH...there once you do? And the way the Republicans portrayed it was, oh, my goodness, we can't possibly have these people come to the United States. Now, I've found that a ridiculous argument. We've tried some 400 terrorists in the last decade, over 300 of them are currently in the U.S. in prisons, including Ramzi Yousef and some very, very dangerous folks. We have maximum security prisons and we have a justice system that can clearly accommodate it. But what turned the debate was that argument that somehow this was going to create security problems in the U.S. to bring them here.

SMITHAs I said, I don't agree with that argument, but that is what sort of turned a lot of folks the other way and, yes, some Democrats supported that. And as a consequence, in the defense bill and the appropriations bill, there are all these blocks to transferring Guantanamo inmates to the U.S. and also a block on spending any money to build facilities to house them. So...

GJELTENYeah.

SMITH...we will need to change that law in order to close Guantanamo.

GJELTENWell, what -- that's a brand new law. The National Defense Authorization Act, just review for us what the provisions are in there that would restrict the Presidents options on dealing with Guantanamo?

SMITHSure. Actually, it's not a brand new law. It was passed in 2010, at the end of 2010.

GJELTENThe original one.

SMITHIt was part of the National Defense Authorizing Act. And the two big provisions are, one, an absolute bar on transferring Guantanamo inmates to the U.S. and second, an absolute bar on spending any money to build facilities to accommodate those folks from Guantanamo. Now, there's also restrictions on transferring Guantanamo inmates back to their home countries that are extremely problematic. I mean, essentially what happened and the reason -- I mean, this was put in 2010, the Democrats still controlled Congress and the President signed the bill.

SMITHBut the reason he did was also contained in the National Defense Authorizing Act that year, was the repeal of don't ask, don't tell. Ironically, Republicans on the House floor, even though the Guantanamo provisions were in the bill, they voted against it because of the don't ask, don't tell. But once it was locked in, it's now become just a regular course of business, even when we do a CR, an appropriations bill, these two provisions are folded into that CR. And the Republicans have held on now that they've got, you know, have got the existing law on their side.

GJELTENWell, Congressman, does these -- do these laws -- and there are some new provisions pertaining to detention policies in the National Defense Authorization Act, that just went -- that was just signed by President Obama, are there not?

SMITHThere are. Now, those actually don't really change existing law. I mean, there's one provision in there about the authorizations to the use of military force and the authority to detain. But what that did is it simply codified what the Obama and Bush administrations had petitioned the courts to authorize. So they were interpreting the original 2001 AUMF which pertained to, you know, people who had perpetrated 9/11 or housed them. And, you know, they gave us somewhat expansive view of that, submitted it to the court and the courts accepted it.

SMITHAnd what we wound up doing -- I mean, the House had much broader language, but we narrowed it down to simply the language that the Obama administration submitted to the courts and the courts approved, basically codifying their interpretation of the 2001 AUMF. And then the second provision, one which you know -- and both of these provisions I did not support because I didn't want to add it to the bill. Second provision is very convoluted. It is meant to allow military custody for terrorists captured in the U.S.

SMITHNow, we have provisions put in to make it clear that this does not apply to U.S. citizens or lawful resident aliens. And everybody captured at this point gets habeas corpus. They get a day in court, which, by the way, was the whole purpose of opening Guantanamo in the first place. The Bush administration wanted to get around habeas corpus.

SMITHYou know, but the courts said, no, habeas applies to people being held in Guantanamo as well as people being held in the U.S. So you have to do all that, but once you've done that, the new provision, if the President doesn't waive it, does allow for the military to take custody of a foreign national captured in the U.S. who's deemed to be under the AUMF.

GJELTENWell...

SMITHIt's kind of complicated, but...

GJELTENYeah.

SMITH...it's a fairly limited provision the way it was ultimately written.

GJELTENYeah, but Congressman, with all these legislative provisions that you've discussed, does this effectively mean -- I mean, you had mentioned that the law is going to have to be changed, you know, if you want to sort of really fundamentally change Guantanamo policies. Does this mean that, basically, at this point, there's very little that President Obama can do, that he is so hemmed in by these legislative restrictions, that you really have to look at a changing Congress before you can really revise fundamental Guantanamo policies?

SMITHWell, with regards to shutting down Guantanamo, yes.

GJELTENYeah.

SMITHThat is true. And that's, you know, what I've been fighting for quite a while. The Congressional restrictions on transfer out of Guantanamo and the Congressional restrictions on building facilities in the U.S. to accommodate them, make it impossible to close Guantanamo. And I think that's a horrible policy.

SMITHI mean, you've got a situation in Guantanamo now between the restrictions on transfer to the U.S. and the restrictions on transfer to foreign countries. Which, by the way, were loosened slightly in the new Defense Authorizing bill to give a little more flexibility to that. You've got a situation in Guantanamo where we're putting people there and once you put them there, you can't -- there's nowhere you can send them.

GJELTENYeah.

SMITHI mean, it's so bad that, okay, let's imagine that you had someone there who went through a military commission and was acquitted. The transfer restrictions still apply.

GJELTENSure.

SMITHThat person could not be transferred to the U.S. and you'd have to jump through a thousand hoops to transfer them anyplace else. This is a horrible, horrible problem and I think needs to be fixed.

GJELTENOkay. Before you go, Congressman, what would you -- what are your most important concerns about Guantanamo? Is it the, you know, sort of the stain on the U.S. reputation around the world and what affect it might have on recruiting militants? Is it these constitutional issues that you're suggesting? Is it the practical difficulties or is the cost to American taxpayers? How do you rank all those concerns?

SMITHWell, number one is making sure that we adhere to the constitution and we make it clear, not just to the world but to ourselves, that we're following the constitution, we're adhering to our standards of justice. And my biggest concerns, as I said just a moment ago, is the notion that people, once there, put there, there's no effective way to transfer them, even if you find out that you made a mistake. And they're innocent, they shouldn't have been in there in the first place. All these restrictions apply.

SMITHAnd the other concern I have is the degree to which people say, well, we have to keep Guantanamo open, you know, because, you know, if we don’t we send them to the U.S. and they go through the normal justice system, that's too many rights for these people. I think our normal justice system has worked enormously well and I think we should use it in every conceivable instance that we can. Now, President Obama, himself, made it clear back in, I think, it was May or July of 2009 when he made his speech on this policy that he wants to hold open the possibility of military commission.

SMITHAnd in some limited circumstances, the possibility of indefinite detention under the law of war because al-Qaida did declare war against us. And you will have enemy combatants to transcend what a normal criminal would be. And if you have to use that in certain isolated circumstances with a group of people who have declared war against us, you need to use it. But it should not be the default step.

GJELTENRight.

SMITHThe number one biggest way to bring terrorists to justice is the way we've done it and, by the way, the way we did it under the Bush administration, repeatedly, through article three courts and normal due process. It absolutely works. We should use it and we should not shy away from it.

GJELTENAll right. Thank you so much. Congressman Adam Smith is a Democrat from Washington State. He's the ranking member of the House Armed Services Committee. Thank you so much for calling in, Representative Smith.

SMITHThanks for having me on.

GJELTENYou bet. John Bellinger, you were present when Guantanamo was created. How have your views changed, if they have, since then?

MR. JOHN BELLINGERYeah, thanks Tom. In fact, I was in the White House at the time. I was in the White House on 9/11. I was the legal advisor for the National Security Council at the time. And over time, I've become more skeptical about the need to keep Guantanamo open, but I would say that in the beginning, although it's become popular among some advocacy groups to suggest that Guantanamo was a mistake from the very beginning and everybody should have realized it, you know, we do have to remember that our troops in Afghanistan were capturing thousands of Taliban and al-Qaida members in these training camps.

MR. JOHN BELLINGERThey were telling us, back at the White House and the Pentagon, we've got to do something with these people and that we're not about to bring them back to the United States. So Guantanamo was, in fact, a secure place to hold them at the time. There was not another place to hold them.

GJELTENYeah. And -- but you say your views have changed somewhat since then.

BELLINGERThey have. And I think, over time, that Guantanamo is now hurting us more than it is helping us. You know, we do have people who are still holding the Bush administration transferred 537 people out of Guantanamo. But we still have some people who need to be held. But it's a very costly facility to operate.

GJELTENYep, okay. More on the Guantanamo detention facility on the 10th anniversary of its founding, that's coming up.

GJELTENWelcome back. I'm Tom Gjelten sitting in today for Diane Rehm. And today is the 10th anniversary of the first flights that took suspected terrorists to the detention camp at Guantanamo Bay, Cuba. And today, we're discussing ten years of detention at Guantanamo.

GJELTENJoining me here in the studio is David Cole, a professor of law at Georgetown University Law Center. He's the author of "The Torture Memos." John Bellinger is a partner at the law firm of Arnold and Porter, a senior fellow with the Council on Foreign Relations. He was legal advisor at the White House and then at the Department of State under Condoleezza Rice during the Bush Administration. And Marc Thiessen. He's a fellow at the American Enterprise Institute, a columnist for the Washington Post. He's the author of "Courting Disaster." He served as a speechwriter for President George W. Bush and Secretary of Defense Donald Rumsfeld.

GJELTENAnd, Marc, you have written a lot about Guantanamo. We certainly are familiar with all the criticisms, all the problems, the practical problems, the political problems, associated constitutional problems associated with Guantanamo. Yet you defend it vigorously, correct?

MR. MARC THIESSENAbsolutely. It's been incredibly critical to our protecting this country during the war on terror. There's intelligence that was gained from the detainees at Guantanamo Bay that has saved lives, that has broken up terrorist cells, that has saved the lives of American troops, information on how EIED cells work, how EIEDs are developed and the like.

MR. MARC THIESSENSo there's tons of lifesaving intelligence. And this is the important thing to remember about Guantanamo Bay is that Guantanamo Bay was not intended, when it was formed, to be a detention center. It was intended to be a strategic interrogation center. It's become just a detention center because President Obama's no longer bringing people to Guantanamo for interrogation. Our policy right now, quite frankly, is we don't capture and detain high valued terrorists at all. We've stopped doing that.

MR. MARC THIESSENWe killed them with predators, which is better than leaving them go, but dead terrorists can't tell you their plans for new attacks and so we are not gaining the intelligence today that we used to. I think that it is quite likely that out of the state of limbo where Guantanamo is right now, if a Republican is elected in this fall that you will see Guantanamo resume its initial purpose as a strategic interrogation center bringing terrorists there again for interrogation.

GJELTENWell, Marc, whether it's a strategic interrogation center or a detention facility, it does have to operate within the parameters of the U.S. Constitution, correct?

THIESSENTo the extent that it's covered by the Constitution, yes. I mean, you don't get full constitutional rights at Guantanamo Bay. I mean, John can tell you that, that that's one of the reasons why it was chosen, that if you bring a terrorist -- if you bring somebody here to the United States, there are different rules that apply to there and what you can do in terms of interrogation and what you can do at Guantanamo.

GJELTENYeah. David Cole, to what extent does the U.S. Constitution apply to Guantanamo? And now, just in the narrow sense of what legal rights the detainees there may have, which, of course, courts have ruled on now. But specifically the -- I mean, the whole facility, to what extent does its operation have to conform to the U.S. Constitution?

MR. DAVID COLEWell, that's still an open question. What the Supreme Court held was that the part of the Constitution that provides for habeas corpus extends to the detainees who are held there. And the analysis that it employed, which said that those constitutional rights that would not be impracticable or anomalous to apply at Guantanamo -- should apply at Guantanamo would, I think, suggest that the full panoply of constitutional rights ought to apply there.

MR. DAVID COLEThat there's no -- there's nothing impracticable or anomalous about affording the detainees due process, about not subjecting them to cruel and unusual punishment and the like. There's nothing more impracticable about providing that there than providing that somewhere in Colorado. But it's not just constitutional law that applied there. And it's not just constitutional law that the Bush Administration refused to apply there.

MR. DAVID COLEI don't think Guantanamo would be a problem today if all we had done was use it as a place to hold people who we detained during the armed conflict in Afghanistan for the duration of that conflict, if we treated them humanely and if we provided hearings to assure that they were, in fact, the people that we said they were. That's what the laws of war require. A hearing where there's doubt, humane treatment and you release them when the conflict is over.

MR. DAVID COLEHad the Bush Administration done that, conformed to those minimal requirements of the laws of war, I don't think Guantanamo would be an international embarrassment because every country that's fighting an armed conflict engages in that kind of detention. But what Bush did was say, we're not going to give them hearings. We know they're the worst of the worst. Course now that 600 of them have been released, we know that's not true.

MR. DAVID COLESecond, we're not going to treat them humanely. Where we think it's necessary to torture them we will, and they did. According to their own people, they tortured people there. And we can hold them for the duration of the global war against terrorism, which is not limited to the armed conflict in Afghanistan.

GJELTENJohn Ballinger, you're not convinced.

BELLINGERWell, I disagree with David that the international community would've ever accepted Guantanamo, nor would the human rights community have accepted Guantanamo. People, even to this day, ten years later, but all along have not accepted the idea that we can hold individual Taliban or al-Qaida members under the laws of war. And the human rights groups and our colleagues in Europe continue to insist that you can only hold these people unless they can be prosecuted in a criminal court.

BELLINGERAnd so, you know, some of these other concerns that David has raised about mistreatment and other things, yes, have been concerns. But ten years later, there is still fundamental disagreement. And you even heard Congressman Smith say this, that we shouldn't be holding people unless we try them in criminal courts. However, both the Bush and the Obama Administration, and President Obama has accepted this, accept that we are in a war with al-Qaida and that we can hold people as combatants in a war.

BELLINGERIt does mean, unfortunately, that they might be held indefinitely because we don't know how long this war may go on, but that we can hold them under the laws of war without having to prosecute them in a criminal court. And that really is what Guantanamo is all about.

GJELTENNow, John, presidents have a duty to protect the American people. They also are sworn to uphold the Constitution. As a legal advisor, I mean, you were facing as a -- you had to provide legal advice in some of the most vexing issues that leaders of the U.S. government have ever had to face. How do presidents -- how do administrations balance these potentially conflictive goals of upholding the Constitution and ensuring the national security of the country?

BELLINGERWell, it's very difficult. And we find that sort of campaigning is different than governing. I mean, a lot of Obama Administration officials came into office thinking that they were going to close Guantanamo and let everybody go unless they could be prosecuted in a federal criminal court. And then they found out that, in fact, a lot of these people were extremely dangerous and that they couldn't be prosecuted in our federal courts.

BELLINGERIt wasn't just an ideological problem, but that they hadn't actually committed federal crimes because our federal courts didn't have jurisdiction over their activities in Afghanistan. And that's why I think the Obama Administration came into office thinking one thing and then having to, frankly, continue a lot of the Bush Administration policies.

GJELTENYou know, Marc, at what point does Guantanamo close? I mean, is there a -- I mean, is this just now a permanent fixture? After all, it is on the soil of a foreign country and, you know, you and I both know something about Cuba. You can't rule out the possibility of a change of government there. I mean, you can't assume that we can have Guantanamo forever, right?

THIESSENWell, the previous prison camps where we held enemy prisoners ended when the other side surrendered. So, you know, unless -- Guantanamo would close tomorrow if al-Qaida would issue a statement saying we surrender. But that's not going to happen.

GJELTENBut al-Qaida (unintelligible) .

THIESSENSo it's going to be necessary to hold these people because there are very dangerous people there who if -- 27 percent of the people who have been released from Guantanamo Bay are estimated by our intelligence community that have gone back to the fight. The commander of Taliban forces in Northern -- I'm sorry, in the Helmand Province who's leading the fight to kill our marines in Helmand Province is a former Guantanamo detainee. The leader of al-Qaida in the -- the deputy commander of al-Qaida in the Arabian Peninsula who almost blew up a plane over Detroit in 2009 was a former Guantanamo detainee. These are very, very dangerous people.

THIESSENBut I want to make one point because David used the T word.

COLETorture.

THIESSENTorture. So I want to make something absolutely clear. No one was tortured at Guantanamo Bay. It is factually incorrect. I think David is a fan of Senator Frank Church, I would expect, who is the senator who led the Church carryings in the 1970s about abuse by the CIA. His younger cousin, Admiral Church, was the Navy inspector general who was asked to do a review of all the detention policies around the world, including Guantanamo Bay. And I interviewed him for my book "Courting Disaster."

THIESSENAnd he told me he actually expected to find a policy of abuse that was from the top down. And let me just read you what the Church report found, very briefly. "We can confidently state, based on our investigation, we found nothing that would in any way substantiate detainee allegations of torture or violent physical abuse at Guantanamo." He added, "detainees are more likely to suffer injury from playing soccer or volleyball during recreational periods than they were from interactions with guards or interrogates." No one was tortured at Guantanamo Bay.

GJELTENWell, we probably should clarify that a lot of the controversy about interrogation practices, which is a real controversy, pertains to detainees at Guantanamo who were previously held in secret CIA prisons outside of Guantanamo. Right, David?

COLERight and tortured there.

THIESSENNot tortured.

COLEThat doesn't make it any better that we tortured them there. But it's also not true that no one at Guantanamo itself was tortured. Susan Crawford was the Bush Administration's lead prosecutor at Guantanamo. She decided to dismiss charges against Mohammed al-Qahtani, who, at one time, was said to be the 20th hijacker. He was not allowed into the country a few days before September 11th.

COLEShe concluded that his interrogation constituted torture. And because of that, she dismissed his prosecution. That's the Bush Administration's own official acknowledging that their people tortured a Guantanamo detainee.

GJELTENBut John and Marc are correct about one thing, David, based on my own reporting, which is that this administration, despite whatever it said previously, is convinced that a lot of the men who are held at Guantanamo, whether they can be tried or not, are simply too dangerous to be released. Would you acknowledge that?

COLESure, I acknowledge that. And I don't think they said anything contrary to that before they came into office.

GJELTENOkay.

COLEI think what they did when they came into office was they reviewed all the people there and they made determinations about what they should do with respect to the remaining people. And they had found that 89 of the 171 people who are now there don't need to be there, should not be there, can be released. But because of the restrictions that Congress has imposed in this kind of not in my backyard short-sided policy, they can't release people who the military, the intelligence all agree should be released. That's, to me, the definition of arbitrary detention, to hold somebody against his will who we conclude doesn't need to be detained.

BELLINGERJust to be clear, though...

GJELTENJohn.

BELLINGER...these people are not being cleared, many of those people had previously been cleared for release by the Bush Administration. Remember the Bush Administration had released 537 people. They cleared other people who were then ready to be transferred over and handed them over to the Obama Administration. When we say that someone is ready to be released and is being held doesn't mean that they were innocent people who were -- you know, we did not round up 600 people who were completely innocent on street corners and put them in Guantanamo.

BELLINGERWhat this -- there might've been a few people like that and mistakes are always made in war. But the majority of these people who have been transferred or released are people who the military and our intelligence services ultimately concluded we were not going to be able to hold for the rest of time, and that we were willing to accept the risk of transferring them back and letting their countries take responsibility for them.

COLEWell, that's if you presume guilt, unless proven innocent. But, in fact, it's not just that the administration decided that some people could be released who previously should have been held. It's also that when they actually had to defend their detentions in court, they couldn't defend them. Thirty-eight detainees have been ordered released by federal judges because those federal judges concluded that there was no evidence that justified their detention. And that's after they've released 600 people.

COLESo the -- presume the weakest cases they would've already released. And even with their strongest cases, you have 38 judges saying, there's no basis for detention. So I don't think we can presume they're guilty until they're proven innocent. I think it goes the other way around.

THIESSENBut, David, 90 -- the Obama Administration conducted an interagency review of every single detainee at Guantanamo Bay and they concluded that 95 percent of those currently held, or held when they took office, were either senior Taliban or al-Qaida leaders or fighters who were rightly held there. And the other small number, like the Uyghurs and all that are -- we have complications in releasing them. So 95 percent of the people at Guantanamo Bay, according to the Obama Administration, are enemy combatants.

GJELTENOkay. Marc Thiessen is a fellow at the American Enterprise Institute. I'm Tom Gjelten and you're listening to "The Diane Rehm Show." If you'd like to join us, call 1-800-433-8850 or send an email to drshow@wamu.org. John Bellinger, you said at the outset that you now have some concerns about Guantanamo. Looking at the case sort of in a non-ideological way, without any sort of preconceptions or, you know, philosophies entering in, just looking at it in a practical way, what's your sense of the worth of Guantanamo at this moment?

BELLINGERAnd, Tom, that is exactly the right question. You know, unfortunately, Guantanamo has, like all of the rest of counterterrorism policies, become much too politicized, much too ideological. And for me, the question -- and by about 2003, 2004, halfway through the Bush Administration, I believe that Guantanamo, which served an important purpose when it was set up and, as Marc said, has continued to serve an important purpose, but I think on balance that it is causing us more harm than good. I would like to see it closed. President Bush said that he would like to move to the day that it could be closed.

BELLINGERI don't think these people ought to be released. I think they can be moved into federal prisons in the United States. I don't think they're about to escape from a maximum security prison in the United States. I think that Guantanamo does cause us harm with our allies. It is extremely expensive to operate. It costs us $800,000 per detainee in Guantanamo to keep them there, as opposed to about $22,000 per detainee in federal prison.

BELLINGERSo at this point, it's a close call. I don't think this is sort of 100 percent or zero percent, but I think, on balance, I would like to see Guantanamo closed and the inmates who need to be held moved to either federal prisons or to military penitentiaries inside the United States. I don't think that creates a risk for the American people.

GJELTENAnd does due process -- would due process -- all the due process concerns apply in the same way, you know, or be even more important in the case of them being held on U.S. soil in a U.S. prison?

BELLINGERWell, you know, it's interesting. This is one of the great debates that no one really, ten years later, knows the answer to. It'll have to be resolved by the federal courts. The -- people inside the United States will have greater constitutional rights than people who are held in Guantanamo. But as has been noted, all the detainees in Guantanamo have had the right of habeas corpus and have been actively exerting that right to have their cases reviewed by federal judges. If they're moved into the United States, they may have some incremental additional constitutional rights. But I don't think any of us could say, well, they're going to have this huge additional panoply which would make it more problematic for them to be moved into the United States.

GJELTENMarc Thiessen.

THIESSENI think it would be very dangerous to move them into the United States and consider why. The first meetings for the plannings of the September -- of the first World Trade Center attack took place in Attica prison. Drug rings are run from prisons. Mafia families are run from prisons. You can run terrorists and there's experience we have that terrorist attacks have been planned in American prisons.

THIESSENThe reality is in Guantanamo Bay, they can't plan anything. They are isolated. They have some access to lawyers, but they're not having regular family visits, not having regular contact with the outside world. You bring them into a federal prison, yeah, initially they'll be put in a super max. But lawyers like David, who are very skillful, are going to draw that down and they're going to pull them out of these super max conditions and they're going to be put into the general population. They're going to radicalize other people, they're going to plan terrorist attacks. It is very, very dangerous to bring these people into the United States into federal prisons.

GJELTENWell, certainly there are -- prisoners are held in solitary confinement for a long, long time.

THIESSENI guarantee -- David, would you support having everyone in Guantanamo in solitary confinement?

GJELTENWe'll get back to that question in a minute. Coming up, your calls and questions on the Guantanamo Detention Facility. It's the 10th anniversary of its founding. We'll be right back.

GJELTENWelcome back. I'm Tom Gjelten sitting in for Diane Rehm today. And we're discussing US detention facilities and policies at the Guantanamo camp in Cuba which opened its doors to suspected terrorists ten years ago today. I'm joined by David Cole. He's a professor of law at Georgetown University Law Center and he's the author of "The Torture Memos." John Bellinger, former legal advisor to the National Security Council under President George W. Bush, also the Department of State under Condoleezza Rice, and Mark Thiessen, fellow at the American Enterprise Institute and author of "Courting Disaster."

GJELTENNow, David, just before the break, Marc issued you a challenge whether, as a lawyer, you would argue against holding suspected terrorists in solitary confinement in a U.S. prison if it were judged by someone in a position of knowledge and responsibility that they were, in fact, dangerous, too dangerous to be released or mixed with the general population.

COLENo. I think that if someone is judged to warrant solitary confinement, then solitary confinement is appropriate. The fact is that over half of the people at Guantanamo, the Obama administration itself has concluded don't need to be detained at all, so surely they don't need to be in solitary. The vast majority of the people at Guantanamo are not held in solitary there.

COLEWe could build a prison that would be essentially a kind of Guantanamo here that would not require us to put them in solitary. We have sufficient security condition with respect to our prisons. We haven't had security breaches. I think it's just pure fear mongering to suggest that every one of those people must need to be stuck in a room for the rest of their lives without even having a conviction of guilt.

GJELTENWell, John, it's true, isn't it, that some former al-Qaida members, convicted terrorists, are, right now, being held in U.S. prisons on U.S. territory? How's it going with them?

BELLINGERThere have not been any problems really that I am aware of. Over time, there have been terror suspects, either al-Qaida or otherwise, who, in fact, have been plotting inside U.S. prisons, as have been organized crime figures. So it's something that we have to be sensitive to, but I don't think it means that we absolutely cannot move the detainees of Guantanamo into federal prisons. We have all sorts of provisions that can be used to limit outside access, if it's judged necessary.

GJELTENI have an email here from Kurt in Byron, Ill. He says he lives in North Central, Ill. and he says it's ludicrous to think terrorists would attempt to fight their way to Thompson. I think that's -- he's talking about the prison there. Fight their way to Thompson, free the prisoners and then somehow fight their way out of the country. If they were going to take hostages to free the prisoners, they could do that now. Marc.

THIESSENWell, you have cases of terrorists in federal prison who have attacked lawyers, attacked prison guards and the rest. I mean, these are dangerous people. They attack their guards at Guantanamo on a regular basis. But we got to get back to this issue of detention versus interrogation. The purpose of Guantanamo is to interrogate terrorists who get intelligence to stop terrorist attacks on our country.

THIESSENIf you take captured terrorists to a federal prison, interrogation ends. You can't effectively interrogate them in federal prison because the reason is, if they have access to lawyers and they have access to family, to effectively interrogate somebody, you have to expose intelligence to them. You have to say we're planning -- when we interrogated Khalid Shaikh Mohammed, we said, we have information about a terrorist plot. What is -- who is this person? We played voices from phone calls. You expose intelligence to them. You can't do that if they're gonna meet with their lawyer in an hour or a family member right afterwards.

GJELTENOkay. I'm gonna go now to Andy who is calling us from Charleston, W.V. because I think Andy has a question that's germane to this actual discussion. Good morning, Andy. Thanks for calling.

ANDYGood morning. I wanted to ask if we were continuing to put prisoners in Guantanamo Bay. And if not, when was the most recent prisoner placed there? And I should take my answer off the air.

GJELTENThanks Andy. John.

BELLINGERThanks. It's a good question. We have -- neither the Bush or the Obama administration have moved anybody into Guantanamo for about the last five years. And this is something where I disagree with Marc. While it is true that al-Qaida members are continuing to be captured around the world, I don't think any president, either President Obama or a future Republican president's gonna want to move more people into Guantanamo where everyone is given a lawyer, they're given the right to habeas corpus.

BELLINGERSo in fact, what President Obama has done is continued to detain lots and lots of people, but to hold them in Afghanistan. So both the Bush administration and the Obama administration have not been moving more people into Guantanamo.

GJELTENBut, Marc, you and I have both looked at these WikiLeak files...

THIESSENSure.

GJELTEN...detainee assessments from Guantanamo, and it's clear that they don't have any recent information, do they?

THIESSENWell, for one, you don't have to have just recent information to be useful. Khalid Shaikh Mohammed, to this day, has information that's useful to us, if we were gonna give it to him. But this is -- the issue is we are not actually capturing and holding terrorists. We are capturing people in Afghanistan and Iraq in those war zones that are being held in those war zones. We are not capturing and detaining high value terrorists the way we were in the period after September 11, 2001. The Khalid Shaikh Mohammeds of the world, the Ramsey (unintelligible) are not being captured. They're being killed.

THIESSENThere was a case in East Africa during the Obama administration where a fellow named Saleh Ali Nabhan, who was the leader of al-Qaida in East Africa, very, very senior Osama bin Laden affiliated person, and President -- this is a report on the front page of the Washington Post. President Obama was given the option to either capture him alive and take him in for interrogation or kill him. And he ordered him killed. The military wanted to take him alive, but they said they couldn't take him alive because they had nowhere to take him. We need a place to take terrorists to interrogate them.

GJELTENYou know, David, this is an argument that I've heard before. If people have problems with the way that detainees are treated either in CIA secret prisons or at Guantanamo, what about the idea of just assassinating people without any due process at all, just sending in a missile from an unarmed drone? I mean, isn't that -- doesn't that raise ethical issues on its own, apart from the intelligence questions that Marc is raising here?

COLESure. It does. I mean, detention raises legal and ethical issues. Killing raises legal and ethical issues. In war time, they're quite similar issues. The laws of war permit us to kill people who are fighting against us in an armed conflict, permit us to detain people who are fighting against us in an armed conflict, but impose certain minimal restrictions on the use of that power, restrictions that I think the Bush administration threw to one side, restrictions that the Obama administration has, at least as far as we know with respect to detention, sought to abide by.

COLEWith respect drone killing, we actually don't know because the policy is secret. And I think this is one of the real problems here that we have a policy that we know because of leaks exists. We know that it authorizes the president to kill even U.S. citizens without trial, without charges. In some circumstances, that might be justified, killing someone who's fighting against you on a battlefield is clearly permissible without a trial and without charges. But we don't know what the scope of that policy is because they won't even say in general terms what the criteria are, how they decide who can be killed and when they use it.

COLEAnd I would agree with respect to the argument between John and Marc, clearly they are detaining people as well as killing people. They just bring them to Bagram or other places in Afghanistan.

GJELTENJohn, clearly, there was a big shift here from the Bush administration to the Obama administration, sending detainees to Guantanamo versus using this drone program against them. Why didn't you guys use drones more often when you were in power?

BELLINGERWell, you know, it is an interesting question. We had developed the drone technology, but we're not using as much.

GJELTENMm-hmm. Right.

BELLINGERThe Obama administration, I think, looked at the problems that the Bush administration had with detention, realized this is a horrible problem that we don't want to touch. And one of the great ironies is, in fact, that they are, in fact, killing far more people than they are detaining them. And one of the great ironies is that amongst both the human rights groups and the international community, there's been less outrage over killing far more people who are then dead, dead and not coming back, than the number of people who were detained at Guantanamo. At least 600 of them have now been released and are going on about their daily lives.

BELLINGERSo it's been really perplexing to me that amongst the international community, they seem to be far more concerned about Guantanamo than they have about the Obama administration's drone strikes.

GJELTENMm-hmm. I want to go now to Bruce who's on the line from Panama City, Fla. Good morning, Bruce. Thanks for calling.

BRUCEGood morning. I was listening when the congressman used the term ridiculous to describe the argument against closing Guantanamo. It seems rather extreme. But if it's true, what do your guests think are the reason that our representatives can't overcome a ridiculous position held by a majority? Doesn't this illustrate the reality of partisan politics and election year for the presidential campaign promise he made? And last, can your guests talk a little bit about their experience personally about politics over persuasive solutions regarding (unintelligible) ?

GJELTENWell, what's ridiculous depends on who's doing the talking, I think. I mean, I think it's pretty clear, isn't it, that we have a vigorous disagreement within the population of this country about Guantanamo. I think the recent polls has suggested, to this day, that a majority of Americans are still opposed to closing Guantanamo, right, John? So if you're looking at this from a political point of view purely, you're probably going to be opposed to closing Guantanamo regardless of what practical issues might come up.

BELLINGERNo. I think that's right, that the poll numbers do seem to show that more than 50 percent of the American people are opposed to closing Guantanamo. Now, it's a very complex issue and I don't think most of the arguments have been laid out for them regarding the alternatives, regarding the costs and so forth. But the elected representatives, including a majority of Democrats, this is not just a Republican issue, rejected President Obama's signature initiative on day two of his administration ordering the closure of Guantanamo and said, no, we, on behalf of the American people, don't want to do it.

GJELTENMarc Thiessen, I want to put to you a question that's raised by Bob who wrote in on an email from Charleston, Ill. "Could your panelists consider the hypothesis that the treatment of some Guantanamo detainees may well have created or intensified the attitudes that led to their being the worst of the worst?"

THIESSENNo. I don't agree with that at all. There was no Guantanamo Bay when al-Qaida blew up two US embassies in East Africa. There was no Guantanamo Bay when they blew up the USS Colon. There was no Guantanamo Bay on September 11, 2001. The fact that is if you talk to the interrogators at Guantanamo and the CIA interrogators, as I have, the people who sit face to face with terrorists and who study what motivates them, what they will tell you is that what motivates terrorist attacks is successful terrorist attacks. That it was the increasing effectiveness of al-Qaida in having bolder and bolder successful attacks against the United States that led to their recruitment.

THIESSENGuantanamo by providing an intelligence -- and the CIA interrogation program by providing intelligence that actually stopped them from succeeding and prevented them from carrying out attack for a decade actually reduced terrorist recruitment. And the fact is, today, if you look at al-Qaida's messaging, they almost never mention Guantanamo Bay. So if it was so effective in radicalizing people, then why are they talking about it?

GJELTENWell, Marc, you did talk to a lot of interrogators who defended the policies they'd been associated with. But you and I both know that there are also a lot of people in the national security community, including the counter-terrorism community, that don't see Guantanamo as supportive of our counterterrorism goals, some people with pretty prominent counterterrorism responsibilities, prominent people at the CIA and people who have interrogation experience themselves. It's hardly unanimity in the counterterrorism community on that issue.

THIESSENI think that to the extent that Guantanamo has damaged our reputation in any way, it is because of the falsehoods that have been told about Guantanamo, the people who say, as we heard on the show, that people were tortured in Guantanamo when it didn't happen. There have been so many calamities thrown against the people at Guantanamo Bay who serve our country with pride, who produced intelligence that saved lives and did not torture anyone. And when people go around and call it a gulag and the rest, then, yeah, it does hurt our reputation in the world, absolutely.

GJELTENI'm Tom Gjelten. You're listening to "The Diane Rehm Show." If you'd like to join us, call 1-800-433-8850 or send an email to drshow@wamu.org or join us on Facebook or Twitter. David, you are a constitutional lawyer and you're looking at this question really from the standpoint of defending constitutional values in this country. Do you consider, you know, the intelligence value that Guantanamo operation has contributed? Do you look at the practical difficulties for someone who has national security responsibilities and really has to take those very seriously?

COLEAbsolutely. I think you have to, as a responsible critic. You have to consider that. But when I look at the fact that people like John McCain, Colin Powell, Condoleezza Rice, former President Bush, Defense Secretary Robert Gates have all said Guantanamo should be closed, Guantanamo is hurting us more than it's helping us, that leads me to conclude that there's a serious basis for that charge. It's not just because of propaganda, as Marc is suggesting. It's because very serious abuses were committed there. And the world is not gonna forget that very serious abuses were committed there.

COLEI think long-term we will look back at Guantanamo the way we look back at the internment of the Japanese. We haven't gotten there quite yet. I think the world has gotten there, but we, as Americans, haven't gotten there. In part, I think, because we haven't had a kind of accountability process here yet. But we will eventually get there. And the sooner we get there, the better in terms of reviving our image around the world as someone who upholds the rule of law and not thrusts it aside by trying to put human beings on an island where they get no access to law.

GJELTENOne second, Marc. We actually have a caller who is a lawyer, Paul, calling us from Newburyport, Mass. Good morning, Paul. Can you hear us, Paul?

PAULWhat's that now?

GJELTENPaul, are you there? You're on "The Diane Rehm Show."

PAULCan you hear me?

GJELTENYes, I can hear you now. You're on "The Diane Rehm Show." Do you have a question or a comment?

PAULYes, I do. The question that I have is this, and I think David might be able to answer this. And I believe Marc might even have a comment on this. I'm wondering, from an international law standpoint where we're classifying people as enemy combatants instead of enemy belligerents. Now, if we were at war, enemy belligerents would have belligerent immunity when it comes to the acts that were perpetrated against the United States.

PAULBecause we've now classified these people as enemy combatants, a term that isn't recognized under international law, we then can hold these people under rules that the United States put in place that no one else truly recognizes. And therefore, when we hold somebody for an indefinite period of time, unlike an enemy belligerent who we would let go at the end of combat, the question is, how does that new classification -- and I guess what are the long-term ramifications of having that classification out there that no one else needs to recognize?

COLEWell, the Obama Administration has abandoned that term and that classification. They talk about unprivileged belligerents, which is a term that's recognized under your national law. There are privileged belligerents who are people who are authorized to engage in battle and you can't try, for example, for murder because they're shooting at your side. And then there are unprivileged belligerents.

COLEAnd I think it's fair to conclude that anyone who's fighting with al-Qaida is an unprivileged belligerent and that those fighting the Taliban, many of them were unprivileged belligerents. But you still have to release them when the armed conflict is over. And most important, whether they're privileged or unprivileged, you have to treat them humanely. And that's the main reason that Guantanamo is the embarrassment it is today because we failed to abide by that most basic human decency principle.

GJELTENVery quick comment, Marc.

THIESSENYeah, David just made my point for me when he compared Guantanamo to the internment of the Japanese. This is exactly what I'm talking about. The people who were interned by the Japanese were American citizens who did nothing wrong, were interned wrongly. The people in Guantanamo Bay are stone cold killers. To compare those two things...

COLEWell, some of them.

THIESSEN...is simply an outrage.

COLE89 of them we've said could be released. They're stone cold killers...

THIESSENMohammed al-Qahtani...

GJELTENOkay. All right. We're gonna have to continue this on another day.

THIESSEN...is a stone cold killer.

GJELTENMarc Thiessen, Fellow at the American Enterprise Institute, David Cole from Georgetown University and John Bellinger. Diane will be back tomorrow. She's been out on jury duty. I'm Tom Gjelten sitting in for Diane. Thanks for listening.