Politics & Policy

Major Legal Issues


Major Kyndra Miller Rotunda, a JAG officer in the U.S. Army Individual Ready Reserve, is author of the new book, Honor Bound: Inside the Guantanamo Trials. A former prosecutor at the Office of Military Commissions and Gitmo, in an interview with National Review Online editor Kathryn Lopez, Major Rotunda sheds light on war and the law, Guantanamo, and Thursday’s Supreme Court decision, and more.

Kathryn Jean Lopez: So is it Club Gitmo?

Major Kyndra Miller Rotunda: To some extent, yes, it is Club Gitmo. Detainees live in open bays and have up to 12 hours of exercise time each day. During that time they can participate in a number of sports including basketball, soccer, and ping-pong. They also enjoy an extensive library (Harry Potter translated into Arabic is among the most popular titles), a selection of videos, an exercise facility, and even a garden. Detainees receive the call to prayer five times a day and during that time the guards cannot interrupt detainees for at least 20 minutes. This restriction even applies to detainees who are not praying. The best evidence of how detainees are treated in Gitmo is their own report. One was offered release and decided to stay until the weather was warmer in his own country. Another closed his letters home with, “wishing you were here” and a third even asked the U.S. government to move his entire family to Gitmo.

Lopez: What’s the worst thing about Guantanamo Bay?

Major Rotunda: Hands down, the worst thing about Guantanamo Bay is the public affairs aspect. For an unknown reason, the Department of Defense refuses to answer criticisms about Guantanamo Bay and has allowed untrue rumors to blacken America’s international reputation. The Church Committee (headed by Vice Admiral Church) investigated claims of “torture” and detainee mistreatment in Guantanamo Bay. It interviewed nearly 1,000 people and combed through countless documents. In Guantanamo Bay, there had been over 24,000 interrogations and investigators found only three incidences of abuse in Gitmo. Two of them involved female interrogators who “touched and spoke to detainees in a sexually suggestive manner.” For example, one sat briefly on a detainee’s lap and put her arms around his neck.

The truth is, the U.S. exceeds the Geneva Conventions in many important respects. But, the U.S. hides its light under a bushel basket by failing to set the record straight. My book, Honor Bound: Inside the Guantanamo Trials, reveals the many different ways that the U.S. exceeds Geneva and provides more privileges to detainees than POWs would receive. In its pages, learn how the U.S. suffered a dangerous detainee riot from within and was forced to call for back-up to get control of the camp; and how the U.S. gave detainee David Hicks an $800.00 (hand tailored) Brooks Brother Suit for his trial.

Lopez: What’s the worst thing that will come of closing it down?

Major Rotunda: If the U.S. decides to close down Guantanamo Bay, the worst mistake it could make would be to move the detainees to the United States. A camp inside the U.S. would become a magnet for radical Islamic terrorists looking to martyr themselves (and the detainees inside) and attack within our own country, again. Furthermore, lawyers for the detainees would seize the opportunity to claim asylum for their clients, which would kick off another round of detainee related litigation. The U.S. originally decided to hold detainees in Guantanamo Bay for safety and security reasons. Those safety concerns still exist. Nobody wants terrorists for neighbors.

Lopez: Are there any advantages to closing it down?

Major Rotunda: I suppose the only advantage to closing Guantanamo Bay is that it would no longer be a target for critics. But, they will find others. Also, Boumediene v. Bush seems to apply narrowly to detainees held in Guantanamo Bay. Presumably, those held in Iraq or Afghanistan, or elsewhere, will not receive Constitutional protections like those held in Guantanamo Bay. That is one reason to stop bringing detainees to Gitmo.

Lopez: If you had the opportunity to advise Senator McCain to reconsider his Guantanamo Bay position, what would you say to him?

Major Rotunda: I would tell Senator McCain what I explained above in the closing-down question. Further, those who criticize Guantanamo Bay will not get down on their knees and thank the administration for closing Guantanamo Bay. It will consider its closure as an admission that Gitmo is the Gulag of our time. We must consider what to do with detainees when we close down Gitmo. If there is no better alternative (and I don’t think there is) then Guantanamo Bay should remain in business.

Lopez: How has America overlawyered this war?

Major Rotunda: You can’t fight a war without lawyers. But, in this war the lawyers seemed to take center stage. I served a tour as a lawyer on the Military Commissions Prosecution Team, and saw, first hand, how the Department of Defense wrung its hands and continued to write and rewrite detailed rules for trial. Judges even required the lawyers to respond to hypothetical motions about matters that had not even been raised — and may never be raised — at trial. The Department of Defense even changed the rules in the middle of a trial!

Nuremberg had simple procedures and rules that protected fundamental rights. Military Commissions exist so that the military can expeditiously bring war criminals to justice during a time of war when military necessity requires it. It is incongruent to claim military necessity, and then cogitate for years about what the rules should be. In Hamdan v. Rumsfeld, the Supreme Court correctly criticized the U.S. Government for “rules and procedures that are subject to change midtrial, at the whim of the Executive.”

Lopez: How and why did the military overreact to the Supreme Court’s Hamdi decision?

Major Rotunda: Mr. Hamdi was a U.S. citizen. The Supreme Court in Hamdi v. Rumsfeld required Hamdi to receive a very basic hearing modeled after the Geneva Conventions, where the detainee does not have a lawyer and the Government can assume the detainee is an enemy combatant. The holding narrowly applied to U.S. citizens. Instead, the government applied it to all detainees held in Guantanamo Bay and it fortified the procedures by giving detainees a “personal representative” to assist them at their hearings.

What’s more, the U.S. put in place a parole procedure that is not required by the Geneva Conventions or any international law. It called these parole hearings “annual review boards — or ARBs.” Each detainee receives a yearly ARB and the military releases detainees it no longer believes pose a threat. But, about 5-10 percent of these detainees return to the battlefield and continue fighting Americans and waging terror. The law does not require the U.S. to parole suspected terrorists to fight another day. But, using this procedure, the U.S. has paroled somewhere around 600 detainees. My book provides examples of detainees we released who later brag about always being al-Qaeda and fooling Americans. One detainee appeared on Al Jazeera within days of his release and railed against the U.S. The prosthetic limb that the U.S. issued him in Guantanamo Bay could be clearly seen in the footage.

Lopez: How bad was the decision last week?

Major Rotunda: I agree with Justice Scalia that our nation will ultimately regret the Supreme Court’s decision. Without any legal authority or precedent, the Supreme Court majority extended constitutional rights to detainees captured abroad during war. The majority admitted that its ruling was without precedent. This ruling will make it more difficult for soldiers to detain and hold the enemy during war time — and will lead to more American (and Iraqi) deaths. I don’t think we should parole terrorists back to the battlefield.

Lopez: “Where is the International Committee of the Red Cross for U.S. soldiers?” How do we start one?

Major Rotunda: My book commits an entire chapter to the ICRC entitled, “The Two Faces of the International Committee of the Red Cross.” The organization exists to provide aid for any detainees held around the world during war. It is supposed to advocate for detainees and ensure that detaining powers follow the Geneva Conventions. But, for a reason I cannot understand, the ICRC seems only interested in detainees held in Guantanamo Bay.

Although the U.S. provides 25 percent of the ICRC’s $665 million field operations budget, the ICRC doesn’t seem concerned about U.S. prisoners captured abroad during this war. We know of four U.S. soldiers who were captured and led away by terrorists during the Iraq war. These soldiers are entitled to be treated as POWs. One of them, Staff Sergeant Maupin, was led away from his convoy by terrorists in April, 2004. He later appeared on Al Jazeera sitting on the floor in his uniform surrounded by mysterious, masked gunmen. For almost four years the U.S. did not know what became of Staff Sergeant Maupin, and the ICRC did not seem to care. Finally, in March 2008, the U.S. discovered Staff Sergeant Maupin’s body. Where is the ICRC for U.S. soldiers? They are conspicuously absent in this war — as they were for POWs like Senator John McCain during the Vietnam War.

I was the liaison to the ICRC delegates when I worked in Guantanamo Bay. I know first-hand that they weren’t complaining about torture. They complained about trivial matters. They wanted more candy Skittles and softer soccer balls for detainees. They even asked if the U.S. would allow detainees to sacrifice a goat for Ramadan! (The U.S. considered but ultimately denied this request). Now the ICRC rewrites history and alleges that conditions were “tantamount to torture” — whatever that means.

Lopez: If there is one lesson Americans could take from your book, what would you want it to be?

Major Rotunda: I want Americans to feel proud of its soldiers serving abroad and in Guantanamo Bay. Our troops serve with honor and distinction. They fight against unbelievable odds in the name of freedom. It is true that some soldiers have done bad things. But, these soldiers do not define the whole and the U.S. punishes soldiers who abuse detainees. (All of those involved in Abu Ghraib are in prison. The ring leader is serving a ten year sentence).

U.S. soldiers are — and ever will be — Honor Bound to defend freedom.


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