Second Report on Guantanamo Detainees Released

Last month Seton Hall law professor Mark Denbeaux, who along with his son Joshua, represents two detainees at Guantanamo, released a ground-breaking report (pdf) that used data supplied by the Defense Department to determine how the DOD decided which detainees should be designated as enemy-combatants. It found:

One third of the detainees were found to be enemy combatants based upon their nexus to an organization allegedly linked to al Qaeda and/or the Taliban. The Department of Defense, for the purpose of the Combatant Status Review Tribunals (CSRT) proceedings, concluded that these organizations were terrorist organizations and concluded that detainees' nexus to those organizations, no matter how slight, was sufficient to hold the detainees indefinitely as "enemy combatants."

Today, Professor Denbaux and Joshua Denbeaux release a second, equally revealing report (pdf), again using the Government's own data, showing major discrepancies between the State Department, Homeland Security and Department of Defense lists of designated terrorist organizations. They say the discrepancies should make us wonder whether these agencies are capable of ensuring our safety.

The Defense Department has an official list naming 72 terrorist organizations. The report finds that

Fifty-two of those groups, 72% of the total, are not on either the Patriot Act Terrorist Exclusion List or on two separate State Department Designated and Other Foreign Terrorist Organizations lists (jointly referred to as the State Department Other Lists). These lists are compiled for the purposes of enabling the government to protect our borders from terrorists entering the United States.

Twelve of the organizations, 18% of the total, are on either the State Department Other Lists or the Patriot Act Terrorist Exclusion List, but not on both.

....In addition to being inconsistent with the Defense Department list, the State Department lists are inconsistent with each other. That is, 46 organizations that the State Department represented to Congress as terrorist organizations on the State Department Other Lists do not appear on the Patriot Act Terrorist Exclusion List.

In other words,

The Defense Department justifies holding many detainees indefinitely due to their nexus with a group that neither the State Department Other Lists nor the Patriot Act Terrorist Exclusion List recognizes as a terrorist organization.

What does this mean? Either the Defense Department's list is bogus, or the State Department and Department of Homeland Security, which are entrusted with securing our borders and safety, don't know what they're doing.

This inconsistency leads to one of two equally alarming conclusions: either the State Department is allowing persons who are members of terrorist groups into the country or the Defense Department bases the continuing detention of the alleged enemy combatants on a false premise.

...Since the Defense Department list differs substantially from the Department of State Other Lists and the Patriot Act Terrorist Exclusion List, both cannot be accurate. Either the Defense Department is improperly identifying terrorist organizations and unnecessarily detaining alleged enemy combatants, or the State Department is not properly prohibiting terrorists from entering the United States.

Background on the first report is here.

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  • Re: Second Report on Guantanamo Detainees Released (none / 0) (#1)
    by The Heretik on Mon Mar 20, 2006 at 05:15:28 PM EST
    Comedy. Black comedy.

    Re: Second Report on Guantanamo Detainees Released (none / 0) (#2)
    by Al on Mon Mar 20, 2006 at 07:56:56 PM EST
    I was just reading DoD's list of terrorist organizations in the appendix to the report cited in the article, and I came across this one: "Extremist organization linked to Al Qaeda". It's right there with Hamas and Hezbollah and all the rest of them. Assuming nobody actually calls themselves "Extremist organization linked to Al Qaeda", I take it the Department of Defense has an open list which includes just about any organization DOD decides fits that definition. The other thing that intrigues me is how does anybody determine whether a person belongs to a terrorist organization? I don't think they have membership cards. I can think of two ways. One is if some reliable authority (for example, the government of Pakistan) tells you that the person belongs to this or that terrorist organization. The other if the person has some connection to another who is a known member of a terrorist organization (a cousin, perhaps). In that case, we have a recursive definition. There is another possibility: A probabilistic assignment to a terrorist organization. You nab someone based on the likelihood that they are connected enough to AQ, for example, that they might have some useful information. Then you beat the crap out of them. This is known as "intelligence gathering" and goes a long way towards explaining why the hunt for Osama bin Laden has been so successful. Afterwards, you put the poor sod down as "Extremist organization linked to Al Qaeda" and keep him in a cage in Guantanamo forever.

    Re: Second Report on Guantanamo Detainees Released (none / 0) (#3)
    by Pete Guither on Tue Mar 21, 2006 at 05:08:42 AM EST
    There's another way to get assigned to a terrorist organization. If you were in Pakistan, for example, and someone who didn't like you wanted to collect the $5,000 bonus for turning in a terrorist to the Americans, then you were assigned to be a member of a terrorist organization. Listen to last week's powerful episode of This American Life (Habeas Schmabeas) for interviews of people who were sent to Gitmo that way.

    Here are the problems (none / 0) (#4)
    by jimakaPPJ on Fri Jan 16, 2009 at 10:13:09 AM EST
    From the report.

    Fifty-five percent (55%) of the detainees are not determined to have committed any
    hostile acts against the United States or its coalition allies.

    It is possible that they were members who had not yet committed a hostile act. And 45% were.

    Only 8% of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40% have no definitive connection with al Qaeda at all and 18% are have no definitive affiliation with either al Qaeda or the Taliban.

    "were characterized" is a qualifier. Did the gov report use it, or these writers. The Taliban and al-Qaeda are only two of the groups involved. Plus, 36%  are not commented on. Since the bias is for defining the prisoners out of the "trouble" area, the lack of comment tells me they are a threat.

    The Government has detained numerous persons based on mere affiliations with a
    large number of groups that in fact, are not on the Department of Homeland Security terrorist

    So we are to believe that because DHS does not have them on a list, they shouldn't have been arrested. Let's see, the FBI doesn't have John's gang on a list so.....

    Only 5% of the detainees were captured by United States forces. 86% of the
    detainees were arrested by either Pakistan or the Northern Alliance and turned over to United States

    So? If Pakistan captures bin Ladin, should we release? (Yes, that's an overstatement, but no more than the implication of the %5 in the report.)

    Finally, the population of persons deemed not to be enemy combatants - mostly
    Uighers - are in fact accused of more serious allegations than a great many persons still deemed to be enemy combatants.

    So? I am not sure what that is supposed to prove beyond one group who is not thought to be bad as a group has more allegations than a great many persons who are not defined as a group. "If we had some ham we'd have some ham and eggs if we had some eggs, etc.

    Finally we have this.

    Citing a memo prepared for him by his staff, Hunter proceeded to discuss some of the at least 10 detainees who have been released from Guantanamo Bay, or Gitmo, only to re-join the fight against the U.S. coalition bringing democracy to Afghanistan

    Among the names listed in the memo is Mohammed Yusif Yaqeb (search), also known as Mullah Shazada.
    Yaqeb was released in May 2003. He proceeded to become the head of Taliban (search) operations in southern Afghanistan and was killed one year later in a fight with U.S. forces.

    Also named is Maulavi Abdul Ghaffar (search), released in 2002 and returned to Afghanistan. As a regional commander, Ghaffar helped carry out attacks on U.S. troops in Afghanistan until he was killed by Afghan forces in September 2004.

    One of the more notable cases involved Mohammed Ismail (search), one of two teens held at Gitmo until he was let go last year. He was recaptured four months later fighting American troops in Afghanistan. The memo notes that at the time of his capture Ismail was carrying a letter "confirming his status as a Taliban member in good standing."

    "One of the most publicized cases, Mr. Ismail, was released to great fanfare at Guantanamo," Hunter said. Ismail "did a press conference at which he thanked the United States for educating him, because we teach them to read and write at Guantanamo."

    Currently, 545 detainees are housed at Gitmo, most of them members of Al Qaeda, the Taliban and their related terror groups. An additional 146 have been released and 62 have been handed over to other governments, according to the memo.


    If anyone wants to argue that the various agencies involved, as the second report seems to be saying, are not talking with each other, be my guest. I have never been especially pleased with most government operations.

    But the fact remains that some we have released have returned, proving that the CSRT's are not perfect. And throwing the terrorist out with the bath water shouldn't be an option.