How Guantanamo Was Chosen

04/28/2015 05:53 pm ET | Updated Jun 27, 2015

People have known for years that the Bush administration chose the detention center at Guantanamo Bay, Cuba in 2001 because it was not on American territory. American officials believed, based on a WWII Supreme Court decision, that detainees held offshore would not have the constitutional right to challenge their detentions by filing habeas corpus petitions in federal court.

However, the process that led to the selection of Guantanamo Bay to house detainees has not been publicly known. The Witness to Guantanamo project recently learned of the process through its interview of Pierre Prosper, Ambassador at Large for War Crimes Issues. Prosper served during the early years of the Bush Administration.

On September 19, 2001, Prosper was charged to lead an interagency working group in deciding what to do with al Qaeda and Taliban captives. The agencies represented included his own Department of State (DoS), the Department of Defense (DoD), the Joint Chiefs of Staff, the Department of Justice (DoJ) and the National Security Council (NSC). Members of various intelligence agencies were also part of the working group. The group convened shortly after 9/11 and addressed several major issues that fall, including the selection of Guantanamo.

On the day after Thanksgiving 2001, Prosper received a call from Under Secretary of State for Political Affairs Marc Grossman and from General Peter Pace, Vice Chairman of the Joint Chiefs of Staff. They informed Prosper of a battle at the prison fortress near Mazar-i-Sharif, Afghanistan. They reported that a large number of Taliban detainees were being held, and that Tommy Franks, the Commander of the U.S. Central Command overseeing U.S. military operations, did not want the captives in an area of operations such as Afghanistan or Pakistan. Because Prosper was in charge of the interagency process, it was his responsibility to determine where the captives should be held.

The following Monday, Prosper called his interagency working group together. They began by ruling out certain locations, including the United States. According to Prosper, the group did not want to bring the captives to New York and have local citizens, as well as judges and jurors, "in harm's way." "They did not sign up for this level of threat," Prosper recalled in his interview with The Witness to Guantanamo Project.

The working group also considered and rejected other options. They looked at military bases in Europe, but saw difficulties in "levels of control." Prosper mentioned Germany as a "hypothetical example." He explained that even if the U.S. could have entered into an agreement with Germany, the U.S. did not see Germany as independent. Germany was a member of the European Union and subject to the rulings of the European Court of Human Rights. The group also explored operating a detention center on various islands around the world. However, many of these islands were under European control and had similar independence issues.

Then the working group looked at non-European countries. Several countries were willing to accept the detainees. Prosper did not give examples of these countries. However, many of these countries had substantial infrastructure issues. As Prosper explained, there was a "very significant price tag [to build the infrastructure] that at that time seemed too much." Infrastructure included construction of airports, roads and facilities among other costs. During the interview, Prosper reflected, "maybe in hindsight we should have taken the deal." He made an interesting point. It presently costs the U.S. government $397 million a year to keep Guantanamo open.

Prosper then revealed how the interagency group decided on Guantanamo. "I remember one day we're literally just sitting there at a loss because every idea was not working, was being shut down for whatever reason." "And we're sitting there looking at [a huge map on the wall of the conference room] and I remember one person from DoJ said 'What about Guantanamo?' And I remember thinking about it and I said, 'go on.'"

The DoJ representative (rep) then explained that the detention facility at Guantanamo was in the process of being shut down because it was no longer being used to house Cuban and Haitian refugees, as it did in the 1990s. The rep added that the U.S. had "full legal rights and control over it," and that "the Supreme Court has ruled that we have authority but yet it's not part of the United States." He was referring to the WWII decision.

According to Prosper, the DoJ rep "made the case and I remember thinking hey, that could work. It's secure, and it's under U.S. control but it's not in the United States. Okay, and what we're looking for at that time was a temporary solution." Prosper pointed out that they were not "thinking of a long-term initiative." Rather, they needed to move prisoners to a secure location, and move them quickly.

Prosper added that the idea of Guantanamo "picked up traction" among the other group members. He suggested that the members take the idea back to their departments to canvas the leadership and obtain approval. However, the working group did not meet again to approve the site. Rather, the White House and the DoD, which oversees all military bases, embraced the idea and quickly decided on Guantanamo Bay to house the detainees.

Prosper concluded his narrative with, "and that's how Guantanamo started." When asked whether anyone outside his working group had ever thought of Guantanamo before this meeting, or if this was truly the first time Guantanamo was considered, Prosper answered, "Yes, that was the first time."

Although Prosper would not reveal the name of the person who suggested Guantanamo, he stated on camera that it was someone from the DoJ. Prosper also used the male pronoun in describing the person, and mentioned that members of this interagency group were at senior level. Other sources indicate that Deputy Assistant U.S. Attorney General in the DoJ Office of Legal Counsel, John Yoo, and the author of the "torture memos" that provided cover for the CIA and the military in their brutal and abusive interrogation practices, was not a member of the working group.

Although Prosper's account is very helpful in understanding how Guantanamo was chosen, there is probably a back story to why the DoJ rep looked at the map and suggested Guantanamo. It is likely that the rep had considered the possibility of Guantanamo before he had arrived at the meeting.

Presumably, as with all-important meetings, an agenda indicating that the group was to consider the location of a detention center was distributed prior to the meeting. It is also likely that the regular members of the working group consulted with their colleagues and superiors before attending the meetings.

Consequently, the DoJ rep presumably consulted with other DoJ officials, including John Yoo. Yoo, a professor at the University of California, Berkeley, who was on leave to work at the DoJ, was knowledgeable on international law, national security issues and executive power.

Assuming the rep and Yoo talked, Yoo would have described the WWII decision. Yoo was very well acquainted with the case. Six weeks earlier, on September 25, 2001, he had written a memo to the Deputy Counsel to President Bush entitled, "The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them," in which he cited the decision.

The DoJ rep may also have known of the WWII ruling from his own work, or from having heard about the case while working with Yoo in the office. It is also likely that he had read Yoo's September 25th memo. Thus, if they met before the interagency meeting, Yoo and the rep could have discussed the possibility of using the detention center at Guantanamo and justifying its use through WWII precedent.

Assuming this speculation is on track, the DoJ rep was well prepared at the interagency meeting to suggest Guantanamo and articulate a clear and persuasive argument as to why the committee should support his position. However, even if my assumptions are incorrect - such as the presumed conversations between the DoJ rep and John Yoo - the origin of how Guantanamo was chosen at a meeting of Ambassador Prosper's working group is now in the public arena.

Peter Jan Honigsberg is Professor of Law and Founder and Director of the Witness to Guantanamo project ( at the University of San Francisco.