Last week, after Barack Obama signed an executive order requiring the closure of the prison at Guantanamo Bay, the New York Times reported that a former Guantanamo detainee had "returned to the battlefield":
The emergence of a former Guantánamo Bay detainee as the deputy leader of Al Qaeda’s Yemeni branch has underscored the potential complications in carrying out the executive order President Obama signed Thursday that the detention center be shut down within a year.
The militant, Said Ali al-Shihri, is suspected of involvement in a deadly bombing of the United States Embassy in Yemen’s capital, Sana, in September. He was released to Saudi Arabia in 2007 and passed through a Saudi rehabilitation program for former jihadists before resurfacing with Al Qaeda in Yemen.
This had the usual suspects in a panic. For example, here's Bill O'Reilly:
Just hours after President Obama announced he was going to shut down Guantanamo Bay, the feds confirmed that a released Gitmo inmate, 35-year-old Sahid al-Shahiri, had resumed terrorist activities in Yemen.
Now if this isn't a warning, ladies and gentlemen, I don't know what is. Obama tells the world no more Gitmo, and a guy the Bush administration let go in 2007 is now a major Al-Qaeda terrorist again. So we can add this guy to a list of 61 former Gitmo detainees who have returned to being terrorists after they've been released, that according to the Defense Department. That's 11 percent of those let go returning to the terror world.
Not to be outdone, here's Rep. Steve King (R-IA):
KING: Let’s just say that, that, Khalid Sheikh Mohammed, the mastermind of 9/11, is brought to the United States to be tried in a federal court in the United States, under a federal judge, and we know what some of those judges do, and on a technicality, such as, let’s just say he wasn’t read his Miranda rights. … He is released into the streets of America. Walks over and steps up into a US embassy and applies for asylum for fear that he can’t go back home cause he spilled the beans on al Qaeda. What happens then if another judge grants him asylum in the United States and Khalid Sheikh Mohammed is on a path to citizenship. I mean, I give you the extreme example of this.
The best antidote to this craziness is, as always, Jon Stewart:
Still, let's unpack the various inanities. First, Obama's executive order doesn't require any detainees to be released, let alone released into the United States. Instead, it provides that "[i]f any individuals covered by this order remain in detention at Guantánamo at the time of closure of those detention facilities, they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States." So much for that.
Second, the Bush administration's decision to release Ali al-Shihri isn't evidence of a bad Obama decision to close Guantanamo, it's evidence of bad decision-making by the Bush administration. Under George Bush we've detained the innocent, released the guilty, and made it all but impossible to prosecute anyone. That's happened because the administration has operated Guantanamo with
the same incompetence it's applied to everything else:
President Obama's plans to expeditiously determine the fates of about 245 terrorism suspects held at Guantanamo Bay, Cuba, and quickly close the military prison there were set back last week when incoming legal and national security officials -- barred until the inauguration from examining classified material on the detainees -- discovered that there were no comprehensive case files on many of them.
Instead, they found that information on individual prisoners is "scattered throughout the executive branch," a senior administration official said.
Justice Department lawyers responding in federal courts to defense challenges over the past six months have said repeatedly that the government was overwhelmed by the sudden need to assemble material after Supreme Court rulings giving detainees habeas corpus and other rights.
In one federal filing, the Justice Department said that "the record . . . is not simply a collection of papers sitting in a box at the Defense Department. It is a massive undertaking just to produce the record in this one case." In another filing, the department said that "defending these cases requires an intense, inter-agency coordination of efforts. None of the relevant agencies, however, was prepared to handle this volume of habeas cases on an expedited basis."
Evidence gathered for military commission trials is in disarray, according to some former officials, who said military lawyers lacked the trial experience to prosecute complex international terrorism cases.
In a court filing this month, Darrel Vandeveld, a former military prosecutor at Guantanamo who asked to be relieved of his duties, said evidence was "strewn throughout the prosecution offices in desk drawers, bookcases packed with vaguely-labeled plastic containers, or even simply piled on the tops of desks."
He said he once accidentally found "crucial physical evidence" that "had been tossed in a locker located at Guantanamo and promptly forgotten."
Let's just run a highlighter over that last point. Here's LTC Vandeveld, describing his difficulties sorting out the facts regarding Muhammed Jawad, who was captured when he was only a minor and then subjected to cruel and inhuman treatment for several years, even though the government has no prosecutable case against him:
7. It is important to understand that the "case files" compiled at OMC-P or developed by CITF are nothing like the investigation and case files assembled by civilian police agencies and prosecution offices, which typically follow a standardized format, include initial reports of investigation, subsequent reports compiled by investigators, and the like. Similarly, neither OMC-P nor CITF maintained any central repository for case files, any method for cataloguing and storing physical evidence, or any other system for assembling a potential case into a readily intelligible format that is the sine qua non of a successful prosecution. While no experienced prosecutor, much less one who had performed his or her duties in the fog of war, would expect that potential war crimes would be presented, at least initially, in "tidy little packages," at the time I inherited the Jawad case, Mr. Jawad had been in U.S. custody for approximately five years. It seemed reasonable to expect at the very least that after such a lengthy period of time, all available evidence would have been collected, catalogued, systemized, and evaluated thoroughly -- particularly since the suspect had been imprisoned throughout the entire time the case should have been undergoing preparation.
8. Instead, to the shock of my professional sensibilities, I discovered that the evidence, such as it was, remained scattered throughout an incomprehensible labyrinth of databases primarily under the control of CITF, or strewn throughout the prosecution offices in desk drawers, bookcases packed with vaguely-labeled plastic containers, or even simply piled on the tops of desks vacated by prosecutors who had departed the Commissions for other assignments. I further discovered that most physical evidence that had been collected had either disappeared or had been stored in locations that no one with any tenure at, or institutional knowledge of, the Commissions could identify with any degree of specificity or certainty. The state of disarray was so extensive that I later learned, as described below, that crucial physical evidence and other documents relevant to both the prosecution and the defense had been tossed into a locker located at Guantanamo and promptly forgotten. Although it took me a number of months -- so extensive was the lack of any discernable organization, and so difficult was it for me to accept that the US military could have failed so miserably in six years of effort -- I began to entertain my first, developing doubts about the propriety of attempting to prosecute Mr. Jawad without any assurance that through the exercise of due diligence I could collect and organize the evidence in a manner that would meet our common professional obligations.
It's no surprise that systems like this produce bad outcomes.
Finally, let's take a closer look at the
Pentagon's claim that 61 released detainees have "returned to the battlefield". Again, this would be evidence of a bad Bush process, not a bad Obama decision, but the Pentagon refused to say who the detainees are, why they were originally detained, when or where they were released, or what they did afterward. Some of them are only
suspected of "returning to the battlefield" -- whatever that means. Particularly from the Bush administration, none of this passes the laugh test. A study by the
Seton Hall Center for Policy and Research verifies that this skepticism is well-founded:
Professor Denbeaux of the Center for Policy & Research has said that the Center has determined that “DOD has issued 'recidivism' numbers 43 times, and each time they have been wrong—this last time the most egregiously so.”
Denbeaux stated: “Once again, they’ve failed to identify names, numbers, dates, times, places, or acts upon which their report relies. Every time they have been required to identify the parties, the DOD has been forced to retract their false IDs and their numbers. They have included people who have never even set foot in Guantánamo—much less were they released from there. They have counted people as 'returning to the fight' for their having written an Op-ed piece in the New York and for their having appeared in a documentary exhibited at the Cannes Film Festival. The DOD has revised and retracted their internally conflicting definitions, criteria, and their numbers so often that they have ceased to have any meaning—except as an effort to sway public opinion by painting a false portrait of the supposed dangers of these men.
"Forty-three times they have given numbers—which conflict with each other—all of which are seriously undercut by the DOD statement that 'they do not track' former detainees. Rather than making up numbers “willy-nilly” about post release conduct, America might be better served if our government actually kept track of them.”
Still, leaving aside the lies and the inanity, it's entirely possible that even a competent process would release some detainees who might later join up with al Qaeda. That's a risk worth considering, but let's consider it in context. According to every counter-terrorism expert I can find, our lawless detention and interrogation practices have radicalized far more than the relatively small number of detainees who have "returned to the battlefield". Indeed, abu Ghraib and Guantanamo are said to be the number one and two motivations for the foreign fighters who've flocked to Iraq. Why isn't Bill O'Reilly fulminating about that?
