[Ariel Meyerstein received his J.D. from Boalt Hall (2006) and is currently a PhD candidate, Jurisprudence and Social Policy Program. His recent scholarship includes, "Between Law and Culture: Rwanda's Gacaca and Postcolonial Legality," 32 Law and Social Inquiry 467-508 (2007), "Transitional Justice and Post-Conflict Israel/Palestine: Assessing the Applicability of the Truth Commission Paradigm," 38 Case Western Reserve Journal of International Law 281 (2007), “The Law (and Lawyers) as Enemy Combatant(s),” University of Florida Journal of Law and Public Policy (forthcoming).]
In this reply, I do not want to take on Kontorovich’s whole argument, but rather nit-pick on the factual foundations, since these largely set the stage for where sympathies align in the debate about Guantánamo and the “war on terrorism.”
I have spent the last few months in London at Reprieve, assisting in the representation of detainees. This has afforded me time to get a really clear view of this process, so I would like to shed some light on some factual inaccuracies related to (a) Kontorovich’s suggestion that the “initial round-up of combatants during the invasion of Afghanistan was not the blind and capricious sweep it is sometimes made out to be,” and about (b) the post-GTMO life choices of some of its former inmates, which Kontorovich also alluded to (“It turns out that he is one of many Gitmo alumni to resume their violent ways”). I take one detour along the way regarding diplomatic assurances, but it’s brief.
I want to emphasize that the parts below analyzing detainee figures are not my own analysis, but synthesize the excellent research of Joshua and Mark Denbeaux (a professor at Seton Hall), who have produced five excellent studies of the detainees. Journalist Andy Worthington also criticizes the West Point report that Konorovich cites, here.
Releasing Detainees to…Torture
First off, to bring some different context to this discussion, we should also keep in mind the very troubling developments relating to individuals released from Guantánamo not discussed by Kontorovich, namely those whom the United States is sending back to countries like Tunisia where they are thrown into detention and tortured despite “diplomatic assurances” to the contrary. This is what the military did to one of my clients, Mr. Abdullah bin Omar al Hajji, who was returned in the middle of the night, without warning to counsel, even though his lawyers (my colleagues) were actually at GTMO the day it happened. The military informed us only two days later, after the deed was irreversible. Among other things, Abdullah, a father of eight has been beaten and threatened that his wife and daughters will be raped, and that they will be arrested and brought to prison to watch him get tortured (For more, see recent news coverage; on the fate of others released under diplomatic assurances see a 2007 Human Rights Watch report, and this 2005 report on diplomatic assurances more generally).
As a side discussion that cannot be done justice to now, I would note that the whole issue of diplomatic assurances really deserves more scholarly attention. Other than as outlined in skeletal form by the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) with respect to deferrals (and terminations of such deferrals) of removal of aliens to countries where they might be tortured (see 8 C.F.R. §§ 1208.17(f) and 1208.18(c)), there are literally no procedures or statutory provisions governing how diplomatic assurances are to be handled. There are definitely no statutory procedures with respect to removals from Guantánamo, though some of the Guantánamo litigation (in particular, Khalifh v. Gates) has produced a sense of this in the form of a declaration from the Ambassador-at-Large for War Crimes Issues, Clint Williamson, who is chiefly responsible for obtaining the assurances.
Arguably, if an individual at GTMO is “cleared” for release/transfer, than they are no longer enemy combatants and were they to apply for asylum to the United States (as some of our clients have), they would be denied and found to be inadmissible aliens – what else would they be? The 3rd Circuit, relying upon St. Cyr has found that federal district courts retain jurisdiction over the Convention Against Torture claims of non-refoulement that FARRA creates causes of action for within habeas proceedings. See Ogbudimkpa v. Ashcroft, 342 F.3d 207, 217-220 (3d Cir. 2003) (noting that “because § 2242(d) of FARRA fails to state explicitly that a district court may not exercise jurisdiction over habeas corpus claims or mention 28 U.S.C. § 2241, the District Court retains that jurisdiction”).
A recent decision by a district court in New Jersey raised this very issue in the removal order context, questioning whether or not diplomatic assurances are compliant with the Convention Against Torture. See Khouzam v. Hogan, 2007 U.S. Dist. LEXIS 43570 (2007) (CV-07-0992).
IF (and that’s a BIG if), the Supreme Court finds the Military Commissions Act unconstitutional this fall, this should clear the way for some interesting habeas-based CAT claims to be made to prevent the transfer of certain individuals to places like Tunisia and Algeria (that is, if they haven’t all been transferred out before the SCOTUS has a chance to rule).
Back to the heart of the matter.
The True Scope of the “Sweep” and the Problems with the West Point Study
Kontorovich cites the West Point study, which concludes that 73% of detainees were a “demonstrated threat” to U.S. forces and no less than 95% were a “potential threat.” Kontorovich also cites Pentagon figures that at least 30 former Gitmo detainees have returned to fight Americans after deceiving U.S. interrogators and being released.
As the New York Times coverage notes, the West Point authors were tasked with coming up with a response to the Denbeaux studies, and not surprisingly, like many of the administration’s arguments, the desired policy outcome drove the fact-gathering(or production of ‘facts,’ as the case may be). As in other instances, what resulted was a full-blown propaganda:
Lt. Col. Joseph H. Felter, the director of the Combating Terrorism Center and a West Point faculty member, said the new report was an independent evaluation conducted without Pentagon supervision. Colonel Felter acknowledged, however, that military officials had indicated they wanted to contest the Seton Hall report. “They had been getting a lot of inquiries related to this previous study,” he said. “They had a lot of concerns with the conclusions, but they did not have another study.
The West Point Study of course totally ignores the whole point now at issue, namely, the significant issues the courts are dealing with regarding the adequacy of the Combatant Status Review Tribunals as a substitute for habeas corpus. I won’t get into that (but see the links to the Denbeaux studies above for more). I will only address the fact-gathering aspect of the CSRTs, which is what leads to the Denbeaux conclusions and the contorted-West Point version of it.
So Where Do the Numbers Come From, Anyway?
It might also be useful to review the way the “evidence” used in the CSRTs is produced according to the Detainee Treatment Act of 2005, which is where the raw data for both the Denbeaux and West Point studies originates:
2. This scrubbed material goes to “case writers” in DC, who create an unclassified summary of the already scrubbed material, which they send to GTMO.
3. The “Recorder” in GTMO passes the package on to the CSRT panels, which later released their determinations. It’s these determinations which serve as the foundation for the Denbeaux reports, which count how many of the CSRT summaries contain X, Y, and Z.
To review, the Denbeaux reports argue that according to the released DoD summaries of the CSRTs:
• Fifty-five percent (55%) of the detainees have not been determined to have committed any hostile acts against the United States or its coalition allies, that is to have participated in any combat. That means that 55% of the “worst of the worst,” those alleged to be enemy combatants, are actually enemy civilians.
• According to the DoD records, at least 60% of those detained in Guantánamo were neither fighters for nor members of either al Qaeda or the Taliban. In fact, 60% of those detained are alleged only to have had some kind of “association” with one or the other. It is undisputed that to have been associated with the Taliban was to be associated with the ruling party of Afghanistan before the United States took military action there.
• According to DoD at most 5% of those detained in Guantánamo were captured by US forces and even fewer were captured on any battlefield. In fact, 86% of the detainees were arrested by either Pakistan or the Northern Alliance and turned over to United States custody. These detainees were handed over to the United States at a time in which the United States offered large bounties (upwards of $5,000, which still goes a long way in rural Afghanistan or Pakistan) for capture of suspected enemies.
To this I would also draw attention to the plights of two individuals—Bisher al-Rawi and Jamil el Banna–that we know where not picked up “on the battlefield,” but rather, in the Gambia, after the British intelligence service, the MI5, essentially betrayed them to the CIA after using them as informants. Bisher and Jamil are also Reprieve clients, and though Jamil is still stuck (though “cleared” for release) in Guantánamo, Bisher, a British resident, just gave his first interviews (in the Mail on Sunday and in The Observer) since his release four months ago. His account is one of the first eyewitness accounts of the CIA extraordinary rendition program detailed in reports by the Council of Europe and the Intelligence and Security Committee of the British Parliament. I have spoken personally with Bisher on several occasions since his release, and while my own personal judgment of character should not be the determination of anything related to national security, it suffices to say that he is not returning to any battlefield anytime soon, chiefly because he was never involved in any terrorist activity. He does express wishes, on the other hand, to get on with his life and do the things normal, free people get to do.
So How Does West Point Arrive at Different Conclusions?
So how do these figures translate into the above West Point findings? Well, through flawed methodology; the West Point study erroneously redefined and expanded the Department of Defense’s terminology to fit the conclusions it wanted to reach. Instead of adhering to DoD’s distinction between enemy combatant and non-enemy combatant, the West Point study invents an arbitrary hierarchy of alleged activities in order to create a new categorizations of detainees. This is contrary to DoD’s procedures. The study does not even attempt to articulate a relationship between these levels and DoD’s determination of enemy combatant status.
The West Point invented hierarchy and associated terminology bears no relation to reality. For example, West Point’s system of categorization makes someone who has “traveled to three or more different countries” a “Level 3: Associated Threat as an Enemy Combatant.” West Point never explains why the act of traveling to three countries renders someone a terror risk to the United States. The DoD has never taken the position that such is the case, and it certainly is not related to how international humanitarian law defines combatants, lawful or otherwise.
This reveals the flaw in the West Point methodology. The West Point report rejects the DoD data that it set out to analyze. The DoD found that 45% of the detainees had committed “hostile acts,” but West Point, using its expanded criteria, found that 56% had committed “hostile acts.” The DoD classified only 8% of detainees as “fighters” but the West Point report concludes that the DoD data shows that 35% are fighters.
Consider also journalist Andy Worthington’s response:
In the three years since the 517 Summaries were compiled, 207 of the detainees studied have been released from Guantánamo. Almost all have been freed on their return to their home countries, and almost all have returned to civilian life. In addition, many – as well as reporting credible stories of torture and abuse at the hands of the US authorities in Afghanistan and Guantánamo – have reiterated the stories that they maintained throughout their detention: that they were either innocent men, mostly sold to the US by bounty hunters and unscrupulous allies in Pakistan and Afghanistan, or Taliban foot soldiers, who had traveled to Afghanistan to fight other Muslims – those of the Northern Alliance – before 9/11, as part of a long-running civil war.
Of the 310 detainees who have not been released, the administration itself admits that it intends to try 80 of these men before Military Commissions, that it intends to hold another 50 because they are too dangerous to be released but not dangerous enough to be tried (which law book did they find that in then?) and that the rest are “eligible for release” because they are “not or no longer a threat.”
Let’s have a look at that again, shall we? On the one hand, the administration commissions its boys to come up with a report stating that 73 percent of the detainees were a “demonstrated threat,” and 95 percent were a “potential threat,” and on the other hand the administration itself has released, or cleared for release, 75 percent of the detainees because they were “not or no longer a threat” (and that’s not counting the 201 detainees who were released before the tribunal process began). How are we supposed to take these clowns seriously?
Returning to the Battlefield in “Dozens”…How About Some Proof?
Finally, what about the contention being bandied about Washington, assumed as truthful by Kontorovich, that at least 30 released detainees have “returning to the battlefield?”
To date, the Administration has claimed 30, but has only provided the names of six men. In the spring, the DoD released specific ISN numbers pairing these men with former GTMO prisoners, and detainee lawyers quickly identified problems even with these identifications that I won’t address here.
Maybe it is not worth quibbling over a discrepancy of 24 people, but if all “detainee math” done by the Pentagon is off by a power of almost 5, then I think that at this point I’d rather see real evidence rather than inflated figures.
And of course, this means that the larger implication from this figure that Kontorovich wants to draw cannot be reached without difficulty. Just because a handful of individuals have “returned” (as the other comments noted, we have no way of knowing whether these are “returns” or new beginnings following five years of radicalization under severe treatment in Guantánamo), it does not follow logically that the initial round-up was in fact not a “blind and capricious sweep.” It may simply mean that the in these and many other cases, the U.S. really did not know whom they captured, and failed, both upon capture and upon release, to follow some of the readily available means of determining this with more certainty. Let us also not forget that hundreds have already been transferred out of GTMO, some to their homes, and others to places so dark and secretive that we don’t even know they exist.
I am certainly not trying to paint all of this as an easy set of issues; however, I do think we need to treat government-generated data with a heavy dose of skepticism. Given all that has surfaced in the last year, it seems we should have learned at least this much from the first six years of the “war on terrorism.”