Blog
Published on February 4, 2015
Senators Kelly Ayotte (R-NH), Lindsey Graham (R-SC), Richard Burr (R-NC), and John McCain (R-AZ) have proposed legislation that would ban the transfer of any detainee from Guantanamo Bay who was, at any point, judged to be a “high” or “medium” risk to national security by the Guantanamo Joint Task Force (JTF-GTMO). This means that the bill relies on determinations that federal courts have overwhelmingly found to be incorrect or unreliable and would effectively prevent the transfer of almost every detainee held at Guantanamo, making its closure impossible.
In contrast to the 2010 Guantanamo Review Task Force assessment of detainee risk levels, which involved the Departments of Justice, Defense, State, and Homeland Security, as well as the Office of the Director of National Intelligence and the Joint Chiefs of Staff, JTF-GTMO is a solely military operation. Its judgments, dated February 2002 to January 2009, were based almost entirely on detainees’ own stories and the accounts of other detainees.
The unsurprising result is that much of the information is not reliable. Many Guantanamo detainees were subjected to torture or cruel, inhuman, and degrading treatment, which produces unreliable information. Detainees also have a strong motivation to implicate other prisoners in wrongdoing in the hopes of better treatment.
The JTF-GTMO determinations themselves, released through Wikileaks, support these assumptions: many JTF determinations include information gathered from detainees who we now know were tortured, such as Abu Zubaydah or Ibn Sheikh Al Libi. (While there are many examples of this problem, an illustrative case is that of Muhammad Abd Allah Manur Safrani al Futri, whose file cites statements by both Zubaydah and Al Libi.) Some JTF-GTMO determinations are stamped with a warning about the reliability of self-reporting: the detainee’s statements are accompanied by a caveat that they are included “without consideration of veracity, accuracy, or reliability.”
But perhaps the most illustrative rejection of the JTF-GTMO determinations is found in the judgments made by federal courts. Many Guantanamo detainees have filed habeas corpus petitions, which require the government to justify the detainee’s continued detention to a federal court. Of course, this means that the government must also demonstrate that the information on which it bases the detention is reliable. The cases decided thus far have shown that the JTF-GTMO classifications often are not.
For example: when granting a detainee’s habeas petition in Mohammed El Gharani v. George W. Bush et al., Judge Richard J. Leon recognized that the government relied on statements by a detainee military officials had judged “not credible.” In granting the petition in Alla Ali Bin Ali Ahmed v. Barack H. Obama, Judge Gladys Kessler similarly remarked that, “In addition to coming from an unreliable witness, the inculpatory statement offered by the Government is based upon multiple levels of hearsay.”
In fact, of the 33 habeas petitions granted by federal courts, 31 were for detainees that JTF-GTMO had determined were “high” or “medium” risk.* This means that in 31 of 33 cases, federal courts have determined that the same information JTF-GTMO used to claim that detainees were “high” or “medium” risk was insufficient, incorrect, or too unreliable to allow the government to lawfully detain these individuals.
Those who follow the Guantanamo habeas cases closely know that it takes very little evidence for the government to successfully argue that it can lawfully detain Guantanamo detainees. Even so, JTF-GTMO got it wrong in 94% of these cases. If you compare the JTF-GTMO determinations to the entire set of habeas merits decisions, the JTF-GTMO determinations were still off in over half the cases (31 of 60).
When closing Guantanamo, the administration must have a clear plan to protect national security. This means basing transfers on information that is credible and corroborated. This is what the Obama administration so far has sought to do. The JTF-GTMO determinations clearly do not meet this standard, and are not an appropriate basis for transfer decisions. Requiring the administration to rely on them—as the Ayotte Bill does—would be a serious mistake.
*Data provided by Brian E. Foster, Covington & Burling LLP
Update: Not only is it clear that the JTF-GTMO standards are based on information that federal courts hold is unreliable, but their decisions are being widely rejected by the current interagency bodies that judge whether detainees should be released. There are currently 54 remaining detainees that have been cleared for transfer; four by Periodic Review Boards and 50 by the Guantanamo Review Task Force. Both of these are administrative bodies that require consensus between representatives from several government agencies—including the DOD, DNI, State, and Joint Chiefs—before a transfer is authorized. Of the cleared detainees, JTF-GTMO judged 38 to be “high” risk and 16 to be “medium” risk. This means that, in absence of a court order to the contrary, Ayotte’s bill would prevent the transfer of all of these detainees, whom the government has more recently judged are fit for release based on current intelligence. This is further proof that the JTF-GTMO determinations simply cannot be considered a reliable or current indicator of risk.
