In February 2016, President Obama announced his plan to close the terrorist detention facility at Guantanamo Bay, Cuba. The plan has been a long time coming. From the moment he was elected president, Obama has promised to close Guantanamo, citing the facility as an example of Bush era anti-terror policies that undermine American national security and damage our reputation in the eyes of the world. Since then, the Obama administration has managed to transfer to other countries a large majority of the men who were detained when he first took office in January 2009. When Obama came into office, there were approximately 240 detainees at Gitmo. As of August 2016, there were 61.
But Obama faces an uphill battle in his attempt to close the facility by the time he leaves office. He has met fierce resistance from members of Congress. As the New York Times notes, Congress banned the transfer of detainees to American prisons in a 2010 defense bill and appears unlikely to revoke the bill. While he could issue an executive order to move the detainees to American prisons, this is likely to cause criticism that he is overstepping his constitutional authority. It appears increasingly likely that the facility won’t close, and the next president will have to decide what to do.
The detention facilities at Guantanamo Bay have been in the news ever since Camp X-Ray opened in January 2002 to house a collection of Taliban and al Qaeda fighters captured in Afghanistan in the fall of 2001. Recently, for example, the New York Times has been running a series about mental health problems that have persisted among men who were subject to “enhanced interrogation techniques” at so-called CIA “black sites” and at detention facilities in Guantanamo. Guantanamo has become a more notorious calling card for human rights activists than ever could have been imagined when A Few Good Men, a movie about a lawyer who uncovers a murder conspiracy on the Guantanamo Bay Naval Base, was released in 1992. But ever since it opened in January 2002 to house the “worst of the worst” (as former Defense Secretary Donald Rumsfeld called the detainees who ended up there), it has become a cause célèbre for human rights attorneys around the world.
Guantanamo is associated with many policies initiated by the Bush administration in the Global War on Terror that have been relentlessly criticized. Allegations of torture. Indefinite detention. Military commissions. One of the most unfortunate repercussions, however, is a widespread sentiment that Guantanamo was a place that detained prisoners of war who did not deserve to be there.
This is far from the truth.
The issues surrounding Guantanamo are many. They are complex, nuanced, and give rise to a multiplicity of concerns. Everything from the reasons for opening Guantanamo, to interrogation practices, to changes over time in the conditions under which detainees are detained, to the threat status of any individual detainee, have been written about in innumerable books and articles over the years. This article is not the place to revisit all of these issues, as it would quickly evolve into a book itself.
But this author would like to remind us of a few simple and important facts about Guantanamo. As Gordon Cucullu writes in his book Inside Gitmo, citing data from a Pentagon fact sheet (which I have not seen myself because the link provided no longer works), U.S. military forces working in tandem with Afghan forces captured as many as 70,000 Taliban and Al Qaeda fighters in the ‘opening salvos of the war’ in Afghanistan, and “[m]ore than 10,000 were vetted by American forces in Afghanistan and released.”
How many ended up in Guantanamo? Less than 800—779, to be exact. In other words, the U.S. military had no interest in picking up random men in the fog of war. They sought to capture individuals who had valuable information about the terror threat. They sought to learn from these men, and to detain them, so they did not return to the battlefield and help commit more attacks. It is unknown to this author if the screening process was ad hoc, or if there were procedures already in place to evaluate people picked up, but given that approximately one percent of those captured ended up at Guantanamo, it is reasonable to infer that, in fact, there was a screening process in place, and it is hard to believe that it was not designed to ensure we did not randomly round up innocent men.
Over the years, the population at Guantanamo was weaned down through transfers to other countries. In 2008, when Obama took office, approximately 240 remained. What could be said about those remaining? This author had the privilege of providing research assistance to counter-terrorism expert Thomas Joscelyn, who has extensively studied Guantanamo detainees and who writes for the Weekly Standard. In December 2008, Mr. Joscelyn published an article presenting the results of a six-month study of these detainees. This author assisted Mr. Joscelyn in the data analysis for his study.
The study examined the transcripts of testimony given by detainees, as well as the allegations against them. These transcripts and allegations were obtained from a review of documents summarizing Combatant Status Review Tribunal (CSRT) and Administrative Review Board (ARB) hearings conducted for roughly 600 detainees. For the 240 or so detainees still at Guantanamo at the time of the study, Mr. Joscelyn created a database that identified four red flags that could be used to determine a detainee’s association with the terror network: (1) evidence that “a detainee was committed to waging jihad,’ such as whether he was influenced by recruiters from extremist mosques and other institutions to travel in search of jihad, or was a recruiter himself (48 percent), (2) whether he had stayed in a Taliban or Al Qaeda guesthouse (60 percent), (3) whether he had trained at a training camp, or served as a trainer himself (72 percent) and (4) whether he had engaged in hostilities by fighting on the front lines or was otherwise involved in terrorist attacks (46 percent). Mr. Joscelyn summarizes:
“In sum, 227 (94 percent) of the 242 detainees we studied in detail had at least one of the four red flags outlined above; 181 (75 percent) had two or more red flags. Ultimately, however, this methodology is intended only to be suggestive. There are many other factors the Obama administration should study when weighing its options. Collectively, for example, the detainees have extensive ties to Islamic charities that are known to be Al Qaeda fronts. And many of the remaining inmates have interacted with senior Al Qaeda officials, including Osama bin Laden. Only a careful review of all of the intelligence on the detainees, classified as well as unclassified, can illuminate just who these individuals are and what they were up to at the time of their capture.”
Almost two years later, the Obama administration released a task force report summarizing its interagency review of the detainee population at Guantanamo. In the report, one section provides an overview of the “threat characteristics” of the detainee population and identifies four sets of detainees: (1) leaders, operatives and facilitators involved in terrorist plots against U.S. targets, (2) others with significant organizational roles within Al Qaeda or associated terrorist organizations, (3) Taliban leaders and members of anti-coalition militia groups and (4) low-level foreign fighters. Of the 240 detainees examined by the task force, 95 percent were identified as falling within at least one of the four categories.
In other words, the findings of the Obama administration task force almost perfectly paralleled the findings of Mr. Joscelyn’s study.
Most of the detainees had been found to be part of the terror network.
The screening process that went from 70,000 men captured to 779 men detained at Guantanamo had identified many individuals who were associated with the terror network. The question, then, was what to do with them. The evolution in policy that began with the opening of Guantanamo and ancillary policies like rendition, “black sites,” and enhanced interrogation techniques are all topics that have been discussed elsewhere. It is the aim of this article only to reiterate and put into perspective the basic facts illustrated above, and to do so, the basic distinction to be drawn is between evidence and intelligence.
Human rights attorneys would have us prosecute detainees under normal procedures of US criminal law, or even if they concede that criminal law is too restrictive and so some version of “extra-criminal” law must apply, there must nevertheless be some procedure for prosecution under the auspices of U.S. constitutional law. In a word, detainees should have access to lawyers and their cases tried before the courts.
This is how terrorism cases were handled in the world prior to 9/11. Hence, Shiekh Omar al Rahman and Ramzi Yousef (participants in 1993 World Trade Center bombing) and others now sit in federal prisons after being convicted in U.S. courts. Incidentally, their prosecution and conviction in a court of law are not ignored in Al Qaeda propaganda and recruitment. Guantanamo itself has paled in comparison to other themes in Al Qaeda propaganda such as the wars in Iraq and Afghanistan and the Israeli-Palestinian conflict, as it does in ISIS’s English-language magazine Dabiq. But to the extent it does figure into terrorist propaganda, the claim that closing Guantanamo and prosecuting detainees in the U.S. courts would “restore our image” and remove a propaganda and recruitment tool from the hands of al Qaeda leaders is simply not true. Whether in Guantanamo or in U.S. federal prisons, detainees are still imprisoned by the infidels, and we will be sure to hear about them.
That aside, the point is that, in a state of war, the normal procedures of law break down. It is not possible to conduct a dispassionate, slow, steady process of discovery and write up memorandums and motions and move through the courts as would be done in a normal criminal case. Why? One, for the obvious reason that war is chaotic and such procedures are impractical, and two, and more importantly, because doing so was counterproductive and would have undermined our efforts to understand the enemy and prevent attacks in the sudden “war on terror” in which we found ourselves post 9/11.
In the immediate aftermath of 9/11, countless threats were coming into the purview of U.S. intelligence, and they were coming from an enemy we did not understand. The pressure under which officials in the Bush administration worked every day was to understand the enemy and prevent attacks. The war on terror was a war on those who would wage the next attacks. Hence, the need for intelligence.
Ultimately, we could come to understand that the enemy as a network of jihadists unified and emboldened by ideology and strengthened by a vast infrastructure of operations expertise and financial backing. The network was many years in the making and formed from a hardened cadre of jihad-inspired Islamists bent on restoring the Islamic caliphate and undermining the institutions of Western societies. Not all terrorists are alike, of course, so one can distinguish the elite from the cannon fodder, and write stories about why any given jihadist comes to the jihad. But by and large, if one studies the history and organization of Al Qaeda and its hydra of terrorist groups (groups like the Taliban, Egyptian Islamic Jihad, Lashkar-e-Taiba, Jaish-e-Mohamed, Armed Islamic Group of Algeria, Moroccan Islamic Combatant Group, Tunisian Combatant Group, Libyan Islamic Fighting Group, Islamic Movement of Uzbekistan, Eastern Turkistan Islamic Party and other groups with which many Guantanamo detainees were affiliated) one sees that there was an extensive network of individuals indoctrinated by radical Islamic ideology, influenced by the works of thinkers like Sayyid Qtub and organizations such as the Muslim Brotherhood, financially backed by innumerable organizations associated with the terrorist infrastructure, operating under Islamic charity fronts like al Wafa and Jamaat Tablighi and al Haramain, and recruited and trained by a network of operatives who had cultivated their expertise in the devising of plots over several decades.
How did we come to understand this enemy?
Some of it we already knew, and some of it we found from multiple sources in the normal course of intelligence work post-9/11. But many of the details and nodes of the network can be found from the summaries of evidence obtained from the interrogation and de-briefing of detainees at Guantanamo. This information can be seen in documents from the CSRT and ARB hearings that were declassified by the Department of Defense in 2006 and currently sit nicely organized here, along with many additional documents that have been released since.
If one spends a few months studying these documents, one can begin to appreciate the value of intelligence gained from detainees. One finds extensive information about the terror network and infrastructure that shows up consistently across detainees. Recruitment networks affiliated with radical clerics like Sheik Muqbil al Wadi in Yemen and mosques like the Finsbury Park mosque in London. Recruiters and facilitators. Travel routes. Financiers. Guesthouses. Training camps. These are all nodes in a network that developed over many years and which absorbed many of the jihadists who ended up in Guantanamo. We needed this information, and we needed it fast. And we got it from detainees. Interrogation and debriefing allowed us to gain a strategic understanding of the enemy.
The Bush administration was not a lawless bunch of thugs. In the chaos of war, it was not easy to devise a clean and simple set of procedures for determining what to do with men they believed to be the ?worst of the worst.” But one thing was clear: keep them out of U.S. courts. They weren’t U.S. citizens, and the aim was to gather intelligence, not prosecute criminals. As a result, Guantanamo proved to be an essential tool in the effort to gain a strategic understanding of the enemy. It could only prove to be so if the men detained there were bad men who had information to give up. Of the 240 or so men that were detained there when Obama took office, they largely were.
Just look at the documents.
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