The recently released Final Report of President Obama’s Guantánamo Review Task Force was supposed to provide a cogent and definitive analysis of the status of the remaining 181 prisoners, given that it took 11 months to complete and involved “more than 60 career professionals, including intelligence analysts, law enforcement agents and attorneys, drawn from the Department of Justice, Department of Defense, Department of State, Department of Homeland Security, Central Intelligence Agency, Federal Bureau of Investigation and other agencies within the intelligence community.”
Sadly, however, the end result – although valid in many ways – also revealed institutional caution, credulity regarding the contributions of the intelligence services, an inability to address fundamental problems with the legislation that authorized President Bush’s detention policies in the first place and a willingness to bend to the demands of political expediency.
Why We Had High Hopes When Obama Came to Power
When Obama came into office pledging to close Guantánamo in a year, it seemed possible that, before the 12 months elapsed, the administration would begin federal court trials for around three dozen of the remaining prisoners and would free the rest.
This was not as fanciful a notion as it may at first appear. Over the years, intelligence reports indicated that the number of prisoners involved in any meaningful way with al-Qaeda or other international terrorist groups was somewhere between 38 and just over 50. As I explained in an article in 2008:
Of the 749 detainees who were held at the prison during its first two and half years of existence, none, according to dozens of high-level military and intelligence sources interviewed by The New York Times in June 2004, “ranked as leaders or senior operatives of al-Qaeda,” and “only a relative handful – some put the number at about a dozen, others more than two dozen – were sworn Qaeda members or other militants able to elucidate the organization’s inner workings.”
Ten more reputedly significant detainees arrived at Guantánamo from [Bagram via] secret CIA prisons in September 2004 and another 14 “high-value detainees” … arrived in September 2006, but these arrivals – which, in themselves, revealed the existence of secret prisons that were even less accountable than Guantánamo – were hardly enough to convince any except the administration’s most fervent and unquestioning supporters that the whole extra-legal experiment was worthwhile.
With the addition of two more “high-value detainees,” who were flown into Guantánamo from secret prisons in 2007 and 2008 (along with four other less significant prisoners), this means that, of the 779 prisoners held in total, only around 5 percent resembled “the worst of the worst” that were so regularly and enduringly touted by the Bush administration, and I hoped that Obama would recognize this and would use it to push back against his predictable Republican critics.
In addition, when it came to releasing prisoners, those of us who hoped for the best back in January 2009 realized that 59 prisoners had already been approved for release (or transfer) by military review boards under President Bush, but had not been released by the time he left office. As a result, we hoped that dozens of prisoners would be released in the first few months of Obama’s presidency.
We were even optimistic that a workable solution could be found for the dozens of other prisoners whose repatriation was out of the question because they faced the risk of torture in their home countries – including Algeria, China, Libya, Syria, Tunisia and Uzbekistan – or because, like a handful of Palestinians, they were essentially stateless refugees. When we saw how much goodwill there was toward President Obama around the world, we believed that it would be relatively easy to secure the assistance of other countries in offering homes to these men, so long as the United States made the first move, offering some of the men new homes on the US mainland.
Obvious candidates for resettlement in the US were the Uighurs, Muslims from China’s oppressed Xinjiang province, who had been sold to US forces by Pakistani villagers after fleeing from a ramshackle settlement in the Afghan mountains, where they had ended up after unsuccessfully attempting to travel to Turkey in search of employment, or because they nursed futile hopes of rising up against the Chinese government. It had been obvious to almost everyone, from the moment they arrived in US custody, that they had no connection to either al-Qaeda or the Taliban, and in October 2008 they had been the first men to win their habeas corpus petitions, after the Supreme Court granted the Guantánamo prisoners constitutionally guaranteed habeas rights three months earlier.
How Our Hopes Were Dashed
In the end, however, although the task force recommended trials for 36 of the prisoners (well within the scope of the previously reported intelligence estimates) and approved 126 for release (out of the 240 prisoners whose cases they studied), its members also demonstrated the caution, credulity, confusion and political expediency that I mentioned at the start of this article.
The most distressing example of caution and credulity concerned what the task force called “the disposition” of 48 other prisoners, who, in their opinion, should continue to be held indefinitely because “prosecution is not feasible in either federal court of a military commission.” The irony – that indefinite detention was exactly what President Bush had established in the first place – was not lost on the members, who made a point of attempting to stifle criticism as follows:
[T]he principal obstacles to prosecution in the cases deemed infeasible by the task force typically did not stem from concerns over protecting sensitive sources or methods from disclosure, or concerns that the evidence against the detainees was tainted. While such concerns were present in some cases, most detainees were deemed infeasible for prosecution based on more fundamental evidentiary and jurisdictional limitations tied to the demands of a criminal forum.
According to the task force, these “fundamental evidentiary and jurisdictional limitations” related to the circumstances of the prisoners’ capture and perceived problems in prosecuting them either in federal courts or in military commissions.
The Problems With the Evidence
On the first point, the task force explained that, because “[t]he focus at the time of their capture was the gathering of intelligence and their removal from the fight,” they “were not the subjects of formal criminal investigations and the evidence was neither gathered nor preserved with an eye toward prosecuting them.” This made the circumstances of their capture – largely at the hands of the US military’s Afghan and Pakistani allies, at a time when bounty payments were widespread – sound less chaotic than it actually was and it also disguised the kind of treatment to which they were subjected during “the gathering of intelligence.”
With this in mind, it is no more reassuring to read the task force’s assessment of the quality of the intelligence services’ reports used to establish the significance of these 48 prisoners. The task force attempted to explain that “the intelligence about them may be accurate and reliable,” but “for various reasons may not be admissible evidence or sufficient to satisfy a criminal burden of proof in either a military commission or federal court.”
The “various reasons” were not explained, but reading between the lines, what this rather bland but conditional statement demonstrates, with its prominent use of the word “may,” is that the intelligence relied upon as evidence will probably not stand up to any kind of genuinely objective scrutiny and the reasons for this are inadvertently revealed in the final line of the paragraph dealing with the “evidentiary limitations.”
“One common problem,” the task force wrote, “is that, for many of the detainees, there are no witnesses who are available to testify in any proceedings against them.” Here, the use of the possible witnesses’ availability is something of a smokescreen, disguising a blunter truth: that the intelligence and whatever witness availability there might be, are both tainted by the circumstances under which “the gathering of intelligence” took place – the coercive interrogations and, in some cases, the torture of the prisoners themselves or of their fellow prisoners.
With 50 rulings now delivered in the District Court in Washington, DC, on the prisoners’ habeas corpus petitions (36 of which have been won by the prisoners), these problems have been highlighted again and again by judges, with an objectivity that eluded the task force – as, for example, in the cases of Fouad al-Rabiah, a Kuwaiti put forward by President Bush for a trial by military commission, who was freed after a judge ruled that the entire case against him rested on a false narrative that he had come up with after torture and threats. And, to cite two more examples, Alla Ali Bin Ali Ahmed, a Yemeni seized in a student guest house in Pakistan and Mohammed El-Gharani, a Chadian national, who was just 14 when he was seized in a raid on a mosque in Pakistan. In both cases, they were freed after judges ruled that the government’s witnesses – the men’s fellow prisoners – were irredeemably unreliable and were, if not subjected to violence, then bribed to produce false statements.
It is, therefore, rather disingenuous of the task force to claim that “the principal obstacle to prosecution” for these 48 men “typically did not come from … concerns that the evidence against the detainee[s] was tainted,” when, to be frank, the record is replete with examples proving the opposite.
Moreover, a review of some of the cases that the task force deemed appropriate for indefinite detention is even more alarming. Although the task force identified roughly 10 percent of the prisoners (24 in total) as “Leaders, operatives and facilitators involved in terrorist plots against US targets” (including six of the 14 “high-value detainees” transferred to Guantánamo from secret CIA prisons in September 2006), the 20 percent identified as “Others with significant organizational roles within al-Qaeda or associated terrorist organizations” (48 prisoners in total) included “individuals responsible for overseeing or providing logistical support to al-Qaeda’s training operations in Afghanistan; facilitators who helped moved money and personnel for al-Qaeda; a cadre of Osama bin Laden’s bodyguards, who held a unique position of trust within al-Qaeda; and well- trained operatives who were being groomed by al-Qaeda leaders for future terrorist operations.”
The most worrying inclusion here is of bin Laden’s “cadre” of bodyguards, for reasons that have long been apparent. The men in question, identified in Guantánamo as the “Dirty Thirty,” are 30 men seized as they attempted to cross the border from Afghanistan to Pakistan in December 2001 and, although some were involved with al-Qaeda and had been fighting US forces (or, to be more accurate, their Afghan proxies) in the Tora Bora mountains, the bodyguard allegations were first picked up on in 2006 as false allegations produced by the notorious torture victim Mohammed al-Qahtani.
In addition, in a recent habeas case, similarly baseless allegations were revealed to have originated with two other prisoners held in secret prisons before their delivery to Bagram, where their confessions were extracted. In the cases of these two men, Sharqwi Abdu Ali al-Hajj and Sanad Yislam Ali al-Kazimi, their statements were excluded by Judge Henry H. Kennedy Jr. because, as he explained, “there is unrebutted evidence in the record that, at the time of the interrogations at which they made the statements, both men had recently been tortured.”
Just as significantly, the false allegations were directed at Uthman Abdul Rahim Mohammed Uthman, supposedly one of the Dirty Thirty, whose habeas petition was granted by Judge Kennedy on February 24 this year (a month after the task force report was published). In his unclassified opinion, Judge Kennedy ruled that the government had failed, by a preponderance of the evidence, to establish that Uthman “received and executed orders from al-Qaeda.”
The Problems With Holding Soldiers in Guantánamo
Beyond the problems with the evidence, the task force also identified “jurisdictional limitations.” These related to problems when, for example, a prisoner’s ties to al-Qaeda had apparently been established – through “attend[ing] a training camp,” for example, or “play[ing] some role in the hierarchy of the organization” – but “the task force did not find evidence that the detainee participated in a specific terrorist plot.”
Despite the fact that “the federal material support statutes have been used to convict persons who have merely provided services to a terrorist organization,” the task force bridled at this option, fearing that the statutes would prevent the filing of charges relating to activities preceding the 9/11 attacks, worrying about the eight-year statute of limitations for these offenses and also worrying that the maximum sentence for material support – 15 years – was not punitive enough.
Missing from these discussions, however, was an additional problem that has arisen during the rulings on the prisoners’ habeas petitions; namely, that the majority of the prisoners who have lost their habeas petitions and who might face some of these material support charges, are, typically, low-level Taliban recruits who were involved, in one way or another, with the Taliban’s conflict with the Northern Alliance before the 9/11 attacks and who clearly had nothing to do with al-Qaeda or international terrorism – beyond, perhaps, having heard the odd pep talk by Osama bin Laden at a training camp.
Instead of debating just two options – trials or indefinite detention – the task force should, I believe, have suggested a third option: holding the men as prisoners of war, protected by the Geneva Conventions and not as the dangerously unique type of prisoner whose detention is justified by the Authorization for Use of Military Force (AUMF). The founding document of the “War on Terror,” passed by Congress just days after the 9/11 attacks, the AUMF authorized – and still authorizes – the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001” (or those who harbored them).
The imprisonment of men detained under the AUMF was approved by the Supreme Court in 2004, in Hamdi v. Rumsfeld, in which it was asserted that “Congress has clearly and unmistakably authorized detention” of individuals covered by the AUMF and it is this combination of factors that is used by Obama, as it was by Bush, to justify the imprisonment of the Guantánamo prisoners.
However, as the habeas cases have shown – and the task force’s problems reinforce – all that has been created for the majority of the men held in Guantánamo is an alternative to the Geneva Conventions (which, crucially, authorize detention until the end of hostilities), that draws everyone involved in it into legal knots and, moreover, only provides ammunition to those who maintain that Guantánamo is full of terrorists, when the truth, plainly, is that it contains only a small proportion of terrorists and a much larger number of soldiers.
The Problems With Political Expediency
The final problem with the report feeds into a larger problem on the administration’s part, relating, as I mentioned above, to the perils of political expediency. In analyzing the cases of the 97 Yemenis at Guantánamo during the course of the report, the task force advised that five be prosecuted and 26 be held indefinitely, but approved the other 66 for release. Seven of these men were freed last year, but Obama bowed to political pressure and halted all further releases to Yemen in January, just weeks before the report was published, in response to a wave of hysteria that greeted the discovery that Umar Farouk Abdulmutallab, the failed Christmas Day plane bomber from Nigeria, had trained in Yemen.
The task force had already designated 30 of the 66 cleared Yemenis in a category of their own, as “pos[ing] a lower threat than the group of detainees designated for continued detention under the AUMF,” and had recommended that they “should not be transferred to Yemen in the near future,” and should be held in “conditional” detention – another novelty – until “the security situation improves.”
However, following the president’s “moratorium on transfers” to Yemen, the task force unanimously agreed with the president’s decision, despite the fact that there was no reason to suppose that Yemenis held in Guantánamo for eight years had – or would have – any connection to a recent al-Qaeda offshoot in Yemen, which apparently involved a handful of Saudi ex-prisoners (not Yemenis), whose release in 2006 and 2007 had, moreover, been authorized by President Bush, in spite of the advice of the intelligence services.
Sadly, this example of political expediency is just one of many on the part of Obama administration in the last year that have dashed the high hopes held by many of us in January 2009. Other examples include Obama vetoing White House Counsel Greg Craig’s plan to bring some Uighurs to live in the US last spring, his decision to revive the reviled military commissions trial system (which he suspended on his first day in office) and his support of indefinite detention without charge or trial, which he announced in a major national security speech last May, when most of George W. Bush’s cards, which Obama had taken off the table, were put back on again.
In conclusion, the Guantánamo Review Task Force’s Final Report is not a complete disaster, but its misinterpretations and omissions are deeply troubling and indicate that closing Guantánamo remains considerably more difficult that it needs to be – or than it should have been. This is sad news indeed for those still held, whether regarded as significant or not, who are still waiting for something resembling justice to be delivered after nearly eight and a half years.