SPIEGEL Interview with Michael Chertoff and Wolfgang Schäuble 'Guantanamo Is a Symbol of a Problem'

In a SPIEGEL interview, German Interior Minister Wolfgang Schäuble, 65, and American Secretary for Homeland Security Michael Chertoff, 54, discuss the muddy waters of creating a legal framework to deal with terrorists who are neither covered by domestic law nor the international rules of warfare.

SPIEGEL: Minister Schäuble and Secretary Chertoff, you've just met with four of your colleagues and a group of international experts to discuss ways to battle terrorism in the future. Why do you need outside advice?

Schäuble: We decided in May at a meeting of the interior ministers in Venice that we would speak very openly about how to deal with the threat of terrorism. When it comes to internal and external security, traditional borders no longer apply. We must provide the maximum protection possible within the scope of our constitutions. We all have different experiences: our Spanish colleagues with ETA, the Brits with the IRA and Germany with the RAF. And our French colleague recalled the experiences during the Algerian War.

Chertoff: We are trying to take stock of what the legal tools we have available are and what the legal gaps are.

SPIEGEL: Six years have passed since September 11. Why has it taken so long for Europe and the United States to start trying to find a common position on how to deal with terror suspects?

Chertoff: We in the United States should have begun this dialogue earlier. But obviously we needed a period of time to take some immediate steps to look over the issue of terrorism. With the benefit of a fair amount of experience, some good and some bad, we can now take a step back and think about what we can do to address the shortcomings.

SPIEGEL: For example?

Schäuble: We need to be able to more easily deport terror suspects. Our coalition government agreement in Germany also stipulates that we prosecute those who have visited terrorist training camps. We want to work together internationally so that we can learn from one another. The point is this: When it comes to the possible threat of international terror, the classic tools of criminal prosecution are no longer effective in every situation.

Chertoff: Our problem is that in the domestic arena we use criminal law -- we are focused on punishing people for things that they have done in the past. We also hope that by punishing people, we can deter them from committing crimes in the future. But when we are dealing with suicide bombers, there is nobody to punish. Secondly, there is no deterrence. People who believe that they are going to martyr themselves in order to kill others are not going to be deterred by the threat of punishment.

SPIEGEL: All these questions have been on the table for years. Isn't it time to provide concrete answers?

Chertoff: In America, it is already a criminal offense to go to a training camp or to do anything to assist or support a terrorist organization. We don't need to show that you personally intended to commit a terrorist act. In other words, we have a conspiracy law that can make terrorist acts punishable without waiting ...

SPIEGEL: ... which also entails the risk that somebody can be convicted who wasn't deeply involved or was just a bystander.

Chertoff: The danger with waiting is that sometimes you wait too long and then, of course, you have to face the consequences. And when we do find people who are threats and come into our countries from abroad, often we can't send them home. Difficulty arises because, often, the person has a terrorist background in their home country and they would be treated harshly. So we are looking at whether the law would allow us to balance the need to treat individuals well against society's interest in making sure that we are not victimized by such people.

SPIEGEL: There is one solution: Get concrete guarantees that deportees will not be tortured when they return to their home countries.

Chertoff: Such a commitment might be one approach. But this is a very difficult problem because if you can’t get a guarantee that is satisfactory then you have two choices. You could hold a person indefinitely, but then you run up against other legal issues. Or you could find a third country to take the person. Ironically, though, the worse the person is, the fewer the countries that are going to be willing to take the person.

SPIEGEL: It sounds like you want to turn Guantanamo into a permanent facility. Will you at least concede that Guantanamo isn't the answer?

Schäuble: Let me say this: Everyone in Europe agrees that Guantanamo cannot be the solution. Opposing Gunatanamo is simple. It is the same with the torture ban: There is no room for any compromise. But that has all led to a situation where we all have to openly consider what the alternatives could be. And we are doing that.

SPIEGEL: Secretary Chertoff, are you prepared to close Guantanamo?

Chertoff: President George W. Bush has said this: It would be wonderful if we could close Guantanamo. But that is not the issue. The issue is what do you do with people who are engaged in acts of terrorism and violence who may not be capable of being prosecuted under domestic law because their activities take place overseas and in war zones and, therefore, you can’t collect evidence in a normal way. What do we do with them? The fundamental issue is this: Is there some legal way to prevent them from doing damage to others? Guantanamo is a symbol of this problem. And that is why we are trying to address it more comprehensively.

SPIEGEL: But it is precisely Guantanamo and the mistreatment of prisoners that seriously damaged the United States' ability to find common ground with Europe.

Chertoff: We cooperate excellently with our allies. Guantanamo clearly became a public relations challenge. But my question to critics is this: What would you do instead? Would you just release them and let them go back and pick up arms again. How many times do you want to repeat that?

SPIEGEL: Let’s be concrete. You could very easily bring Khaled Sheikh Mohammed, the alleged mastermind behind the 9/11 terrorist attacks, to trial in the United States.

Chertoff: Without getting into specific individuals, here is the difficulty: In the American court room, under the traditional legal system, we have to collect evidence in a certain way. We have to have people who come in face to face and testify. But you can’t collect the evidence in Afghanistan. The Taliban are not going to stand back, and say: Oh, please take some pictures.

SPIEGEL: What about the reports of prisoner abuse, like the so-called waterboarding -- a practice that causes them to think they are about to drown? That's the real reason you are shy of the courts.

Chertoff: No. But let me give you another example of our difficulties. Every suspect in an American case has the right to an attorney and the right to silence. You give them the opportunity to start fighting the legal system right away. Any lawyer is going to tell his client, "don't talk." If you give the person a lawyer right away ... you would get no information from them. The consequence of that will be that people will die. We don't want to mistreat people, but you have to have a way to get information.

SPIEGEL: With all due respect Mr. Secretary, the right to have a lawyer is one of the fundamental achievements of a free democratic state.

Chertoff: But not in a war. Nobody would suggest that if we capture a member of the Taliban in Afghanistan that we have to give him a lawyer right away.

SPIEGEL: Mr. Schäuble, do you not fear that this kind of practice would cause massive collateral damage to basic rights?

Schäuble: We are getting together and grappling over solutions precisely because we want to prevent that. This interview itself underscores this: It is difficult, and that is exactly why I refuse to accept any thought-policing on this issue.

SPIEGEL: So let's look forward. Mr. Chertoff, would you put Osama bin Laden on trial if you captured him?

Chertoff: That is a very hard question to answer. Obviously on the one hand there would be a concern about whether there is any information that he knows about pending attacks of people who are members of al-Qaida that would enable us to prevent further harm. The first responsibility is always to prevent further harm. If we exhausted whatever he has, I think there would be a desire to bring him to justice. I am sure most people would probably prefer to be put on trial in a German or American court, because you have more rights there as a defendant. But the world would have to decide.

SPIEGEL: Unfortunately, it looks like that question -- at least for the time being -- will remain a theoretical one.

Chertoff: You never know.

SPIEGEL: There was fierce criticism of Wolfgang Schäuble when he contemplated the targeted assassination of bin Laden. Can you understand this criticism?

Chertoff: I haven't heard anything about that ...

Schäuble: ... because I did not make any such demand!

SPIEGEL: You contemplated the legal provisions for a situation in which "someone knew what cave Osama bin Laden is sitting in. A remote-controlled missile could then be fired in order to kill him."

Schäuble: To put one thing straight: I only addressed the fact that at that moment we didn't know whether we would have to classify bin Laden as a civilian or a combatant.

Chertoff: I don’t think he is an eminent civil person ...

Schäuble: ... but is he a combatant? Does he wear a uniform?

Chertoff: It’s one of the challenges that the Geneva convention tells us that there are certain rules that fighters are supposed to obey, including wearing a uniform. The fact that someone violates the Convention should not put him into any better position than someone who plays by the rules, though. Bin Laden is an operational leader.

SPIEGEL: And you would assassinate him on the spot without any legal concerns, if you had the chance?

Chertoff: If you encounter the enemy general on the battlefield you don’t have to have a trial first.

Schäuble: This question needs to be answered by international legal experts.

SPIEGEL: So how would you define the current situation? Are we fighting terrorism -- or do we find ourselves in a war on terror, as the American government has claimed for years?

Schäuble: That is a question of wording. In any case, the United Nations says the US has the right to defend itself from armed attacks.

SPIEGEL: If it were a war, how long would it last?

Schäuble: Our efforts to preserve security and freedom must continue for as long as we continue to be threatened. We have to get used to the fact that this could last for many years to come.

Chertoff: It is symptomatic of exactly the problem we are having. We have had only two models of how to deal with these issues legally -- traditional war or armed conflict and domestic legal law enforcement. This makes everybody uncomfortable -- and they feel the need to put the problem into one pigeonhole or another. But this doesn't work. This will be a conflict of real duration and we will need a legal system that can be sustained over a long period of time.

SPIEGEL: Can you at least understand the concern of many that, as you seek out these new rules, human rights might get lost?

Schäuble: Yes, but I feel we are all doing what we can to make sure that doesn’t happen. And I want to reiterate that fundamental human rights also include the right to security. Even if something were to happen in Germany one day, we should not give up our constitutional principles, one participant at the conference said. I agree. But that will only be achievable if everyone agrees that we must do everything humanly possible to prevent an attack.

SPIEGEL: How important is Germany's cooperation with the United States on security issues?

Schäuble: It is vital. If if we really want to work together, then we also need common legal foundations. Those who are responsible for domestic security must also answer the question of how they can handle new threats without abandoning the achievements of our free democratic state.

SPIEGEL: Why don't you simply say: We made mistakes in the fight against terror after 9/11. That would surely ease the discussion with Europeans.

Chertoff: Actually that is what we are doing. I don’t think anybody has said that everything that we did was perfect. We had gaps in our legal arrangements and right after 9/11 we had to pick up whatever tools we had on hand and act in an emergency. It is like when your house is on fire -- you might use some tools that you wouldn’t ordinarily use to try to put it out. Americans are taking a hard look at what we have done, examining what things we are happy with and what we could do better. That’s why I am here.

SPIEGEL: Mr. Schäuble and Mr. Chertoff, we thank you for this interview.

Interview conducted by Georg Mascolo and Holger Stark.

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