Continuing with the theme of armed conflict, detention, and terrorism, the latest installment in our occasional series of book reviews addresses Karen Greenberg’s The Least Worst Place: Guantanamo’s First 100 Days. This review may also be found in Issue 42:3 of the Journal of International Law and Politics.
By John Wunderlin
In the preface to The Least Worst Place: Guantanamo’s First 100 Days, Karen Greenberg briefly sets out the aim of the book: to describe the early days of the Guantanamo Bay detention facility, in which few abuses occurred despite incredibly trying circumstances, and to ask whether this narrative sheds any light on how later abuses came to occur and how such abuses might be avoided in the future. Perhaps in deference to the complexity and difficulty of the subject, Greenberg never tries to formulate the lessons as a set of policy prescriptions. Nevertheless, she succeeds in developing a strong understanding of how certain forces and circumstances gathered to create a disaster at Guantanamo while other forces worked to keep disaster at bay.
At the center of the story is Brigadier General Michael Lehnert, a marine assigned to set up and oversee the initial operation of Guantanamo Bay with virtually no guidance from his military or political superiors. Most of the narrative focuses on the tough decisions he and his closest adviser faced during the first 100 days of Guantanamo. However, Greenberg’s scope is broad, and we also learn about the experiences of actors ranging from ordinary army privates to members of the Bush administration and their legal teams.
In the preface, Greenberg states that this history shows us “the human condition when it tends toward dignity rather than disgrace,” and it is not hard to figure out which personalities she finds dignified and which disgraceful. The book is conspicuously biased. At times the writing is suffused with the language of value: Greenberg speaks of dignity and disgrace, humanity and dehumanization. However, these values emanate from sensibilities that most readers will share: respect for the rule of law, a belief that prisoners should be treated humanely (especially when no evidence has been presented against them, much less a jury verdict), and a deep concern over abuses of power—in this case, brutality, indefinite detention, and torture. This is a story about our deepest values, Greenberg seems to be insisting, and it would be a mistake to tell it in purely clinical terms.
At the same time, she does not speak in moral absolutes and acknowledges the risks and benefits of the policies under
examination. For example, one of the central narratives of the book is the conflict between Colonel Carrico, the head of detention operations at Guantanamo, and Lehnert over the extent to which the officials should seek to accommodate some of the prisoners’ wishes (for example, regarding religious observance or diet). Colonel Carrico, the head of detention operations at Guantanamo, believes that a display of unyielding authority without any shred of accommodation is necessary to maintain order in the camp, whereas Lehnert favors a more accommodating approach. This tension comes to a head when the prisoners begin a hunger strike after prison guards mistreat the Koran twice in quick succession. Carrico maintains that the hunger strike is a product of excessively lenient policies: Lehnert has granted so many of the prisoners’ requests that they have lost respect for his authority, and the only appropriate response is to clamp down aggressively. Although Lehnert recognizes the force of Carrico’s argument, he ultimately decides to put together a more conciliatory response that succeeds in reducing the number of strikers from nearly a hundred to a dozen.
Typical of her approach, Greenberg does not attempt to argue that Lehnert’s approach is always better nor does she attempt to provide guidance as to when a disciplinary approach is better than a conciliatory approach, or vice versa. Instead, she tells the story of how, in this instance, the more humane approach worked.
As noted above, one of Greenberg’s goals is to identify some of the crucial factors that led to the abuses that occurred
at Guantanamo Bay and elsewhere in the War on Terror. Several factors stand out in her narrative, but one stands out
above all the others: the absence of the rule of law. This legal vacuum had, broadly speaking, two main components. The first was that there simply were not preexisting laws to provide guidance to administrators. The military had not engaged in major detention activities since World War II and consequently had neither the human expertise nor guidelines needed to handle such activities. If Lehnert and the other prison administrators wanted to apply rules to the camp, they would either have to make the rules themselves or borrow rules from other sources.
The second, and far more ominous, sense of “a legal vacuum” was the notion that no law should apply to the handling of the detainees. In fact, perhaps the primary reason that Guantanamo Bay was chosen as a detention site was that it was a place in which neither domestic nor foreign law applied. In the early days following 9/11, the War Council (a group of close advisers to the president who effectively dominated decisions of national security law) put forth the argument, based on a radical interpretation of the Geneva Conventions, that international law also did not apply to the detainees. Eventually, over the protestations of the lawyers at the State Department, this became official policy.
The consequences of this legal vacuum range from banal to terrifying. One of the most basic consequences was that Lehnert and his staff had no choice but to create rules on the fly. Although every body of law contains imperfections, most can be assumed to contain much accumulated wisdom. Some representative problems his team faced included: How does one provide medical care to potentially dangerous detainees without risking injury to the medical staff? How should the medical staff reconcile Muslim practices with concerns about safety? Many of these problems had to be resolved through the wits of those administering Guantanamo Bay, and there were certainly mistakes along the way.
A much more terrifying feature of the absence of law was that it meant that there was no sanction standing between the
detainees and brutal, inhuman treatment. Early on, the Bush administration lawyers aggressively argued for exclusion of the detainees from coverage by the Geneva Conventions, without exactly explaining their motives or purposes. But, as the lawyers at the State Department presciently asked, “If you’re not going to violate the Conventions, then why create the legal space to do so?” As we know now, that legal space was created in part to allow egregious violations of the Geneva Conventions, most notably by allowing torture.
However, Greenberg also seeks to show how the worst abuses of the War on Terror could have been avoided. To this end, she provides a compelling account of how—in spite of the absence of law and its sanctions—Lehnert managed to create a camp that was remarkably ordered and humane, considering the circumstances. No prisoner appears to have been tortured on his watch, and great efforts were made to ensure that any abuses or grave and unnecessary deprivations suffered by the prisoners were promptly ended, to the extent that this was possible. What factors aided Lehnert and the other military officials in this endeavor? Undoubtedly, there are far more than can be described here, but several stand out.
Perhaps Lehnert’s greatest tool, in this regard, was the Geneva Conventions themselves. Lehnert had received instructions that he was to act consistently with the Geneva Conventions, but should not feel bound by them. He received virtually no further guidance as to what was meant by this cryptic phrase. In the face of this silence, Lehnert committed himself to following the Geneva Conventions to the greatest extent possible, considering the circumstances.
Yet applying the Geneva Conventions in practice proved to be a rather complex endeavor, and the experience and impartiality of ICRC observers were essential to their successful application. How far did the camp need to go to comply with the Geneva Conventions requirements to respect the religious beliefs of prisoners? How much force was acceptable to maintain discipline? The ICRC representatives present at the camp were able to give more specific content to the Geneva Conventions in order to resolve these and other questions. They helped communicate the concerns of the detainees to military officials, and were also able to provide an impartial perspective on conflicting interests. Although the camp was unable to implement all of the requirements of the Geneva Conventions—for example, it was some time before they were able to set up a secure means of providing recreation time to prisoners—they did comply with many of its provisions.
Unfortunately, Greenberg does not provide as much precise legal background here as she does in some other sections
of the book. We largely learn about the content of the Geneva Conventions through the demands that the ICRC makes on the detainees’ behalf. However, the narrative does make clear the important role that the Geneva Conventions played in the governance of the camp. They provided standards and norms according to which the military could work—standards that contained the wisdom of over a hundred years of debate and practice regarding the treatment of prisoners—and helped restrain forces working to make life more difficult for the detainees.
There was an obvious downside to this ad-hoc, unbound approach to implementing rules in the camp: the rules could be abandoned at any time without legal consequence, and their survival depended to a large extent on the presence of a leadership committed to their implementation. Lehnert departed after only a few months at the camp and was replaced by leadership more amenable to the goals of the Bush administration, which placed increasing pressure on the leadership to aggressively interrogate prisoners. The final section, or Postscript, of The Least Worst Place briefly sketches the changes that occurred in the several years following this change in leadership. Torture occurred, random abuse by the guards became more common, and prisoners came to feel more isolated.
These harms throw the positive features of Lehnert’s leadership into sharp relief, and drive home the impressiveness of his and his staff’s accomplishments. One limitation of Greenberg’s account is that the administrators during the first 100 days of the camp were not under orders to interrogate the prisoners, nor did they have to make the difficult choices that such a mission would entail. As Greenberg makes clear, there are some tensions between the goals of detention and the goals of interrogation, and Lehnert and his staff did not have to deal with these tensions. One of the most important questions raised by The Least Worst Place is how these goals could best be reconciled. Although Greenberg does not address this question head-on, her account undoubtedly provides many important insights in thinking about this question.
The Least Worst Place is, at its heart, a story about a place to which the rule of law was never intended to reach. As such, it does much more than tell a story about soldiers and politicians squabbling over the rules that will apply to the detainees under their control. It throws into stark relief the role that law plays in our society. It raises numerous questions about just how the Bush administration’s national security policy developed and how things could have been done differently. Those who would hope for in-depth, legalistic treatment of each of these questions will likely be disappointed. Greenberg’s legal analysis is often brief (though carefully argued and supported). However, those looking for an exhaustively detailed and insightful narrative account of extraordinary events that shed light on these questions will be richly rewarded.