Closing the prison for "enemy combatants" at Guantanamo Bay now seems possible. Bills are pending in Congress. Even President Bush is discussing it.

 

The politicians' motive, however, is that Guantanamo is bad public relations for the "war on terror," which can erode political support and embolden enemies. For the most part, they propose a PR solution: Move the prisoners.

 

They aren't seeing the larger danger. The policy of indefinite detention, coercive interrogation and rigged trials impedes investigations necessary to prevent terrorist attacks. This danger goes unnoticed in what has dissolved into a debate about "American values" vs. prisoners' legal rights.

 

Guantanamo was designed as an offshore interrogation camp where U.S. officials assumed they could legally use coercive interrogations to extract information from terrorists. The problem, though, is that most of Guantanamo's prisoners are not terrorists. Many were merely captured in Afghanistan's long-running tribal conflicts and sold for a bounty to U.S. forces.

 

Yet the administration considered prisoners' protestations of innocence as evidence of al-Qaeda training and resorted to coercive methods to "break" them. To end such abuse, many prisoners merely serve up confabulations. Even without torture, many innocent men imprisoned indefinitely will say anything for better food or a nicer cell.

 

It's not hard to understand how this impedes counterterrorism. Sifting through hundreds of false confessions wastes valuable time. Moreover, officials are misled, sometimes tragically. An example: A confession extracted - and later recanted - from a prisoner "rendered" to Egypt claiming that al-Qaeda operatives received training in Iraq was part of the flawed U.S. case for invasion.

 

Unfortunately, Congress and the judiciary have failed to understand the link among detentions, interrogations and investigations, and the need to sort terrorists from nonterrorists. Early on, Congress could have required that the administration's cases be tested in real courts. The Supreme Court could have deferred less to the administration.

 

But in 2004, the high court ruled that prisoners had only limited rights to challenge that they were "enemy combatants." The Bush administration used that ruling to create the rigged Combatant Status Review Tribunal (CSRT), which is useless for testing the government's case. The CSRT applies a broad definition of enemy combatant that inevitably ensnares innocent people; applies a presumption of guilt; has no juries; disables prisoners from gathering exculpatory evidence; prohibits prisoners from having lawyers; and relies on hearsay, coerced confessions, and secret evidence to reach its judgment that a prisoner should be detained indefinitely.

 

Another way Guantanamo impedes terrorism investigations is by using the "military commissions" the administration created to try "enemy combatants" for terrorism and war crimes. These tribunals are also rigged. They can admit coerced testimony and hearsay and use soldiers for jurors. But unlike CSRTs, military commissions can impose death sentences. Innocent prisoners facing what they believe is certain execution may decide to "cooperate" by confessing or by falsely accusing others.

 

Rigged rules undermine investigative abilities. When investigators know they can win trials by simply coercing confessions and relying on hearsay, they may feel little need to risk their lives infiltrating terrorist groups and developing sources. Such skimping can cause investigators' skills to atrophy and prevent their building an accurate database over time.

 

Defenders of Guantanamo might say the policy is justified because the dragnet probably ensnared a few terrorists and averted attacks. Even if this is true, these same terrorists could have been caught - along with other actual terrorists still at large - by focused investigations.

 

Moreover, accurate investigations are a better policy than relying on dumb luck. Look at Iraq, where mass roundups have consigned thousands of suspected "insurgents" to languish in crowded prisons. Perhaps a few attacks were foiled, but the "insurgency" has grown.

 

The current talk of closing Guantanamo is a dangerous shell game, which aims to keep intact all or part of this brutal policy.

 

Instead, leaders must forge an effective detention and interrogation policy that recognizes the link to accurate investigations, which are necessary to thwart terrorist attacks. A tribunal designed to reach accurate conclusions about whether a prisoner is even a terrorist is the sensible place to start.

 

Brian J. Foley is a visiting associate professor at Drexel University College of Law. His article, "Guantanamo and Beyond: Dangers of Rigging the Rules," will appear in the fall 2007 issue of the Journal of Criminal Law and Criminology.

 

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