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I Worried This Would Happen

Thursday, July 14, 2011 at 2:20 PM

I was afraid that the nomination of Matthew Olsen to head NCTC would head in this direction. Over at the Weekly Standard, Thomas Joscelyn is suggesting that senators grill Olsen concerning the transfer recommendations of the Guantanamo review task force he headed at the beginning of the Obama adminsitration:

On July 1, President Obama announced that he was nominating Matthew Olsen for the position of National Counterterrorism Center (NCTC) director. Olsen has served in a number of national security-related government positions, including as the head of Obama’s Guantanamo Review Task Force.

As one of his first acts in office, Obama authorized the task force to review each Guantanamo detainee’s case files as his administration prepared to close down the detention facility within one year – a goal that proved to be unattainable for a variety of reasons. The task force made recommendations as to which detainees should be prosecuted (either in military commission or federal court), held indefinitely, or transferred to another country. (No detainees were approved for outright release.)

The task force approved most of the detainees remaining at Guantanamo for transfer, clearing the way for the Obama administration to empty most of the detention facility’s cells.

But a review of leaked detainee threat assessments reveals that many of the detainees approved for transfer by the task force were deemed “high” risks by Joint Task Force Guantanamo (JTF-GTMO), which oversees the detention and interrogation of detainees. Moreover, JTF-GTMO recommended that most of these detainees be retained in U.S. custody – precisely the opposite of the task force’s recommendations.

The NCTC’s director position requires Senate confirmation. So will senators question Olsen’s role on the task force, and the task force’s willingness to approve a large number of “high” risk detainees for transfer?

Alas, I suspect they will. Indeed, the effort to portray the review task force as a weak-kneed and naive effort to free lots of dangerous people is probably inevitable in the current climate. But for whatever it’s worth, I’d like to emphasize that it’s wrong.

I have a small personal stake in this brewing dispute. I called for a task force very much like the one Olsen ended up heading even before Obama was elected. The idea was controversial then–ironically, for reasons rather the opposite of the reasons it is controversial now. The worry then was not that such a task force might release dangerous folks, but that a granular focus on individual detainees might lose sight of the big picture–the role of detention in the conflict more generally. In other words, for those committed to ending non-criminal detention, a task force that reviewed individual cases risked taking its eye off the ball.

Back in June 2008, I found myself testifying before the Senate Judiciary Committee alongside Human Rights Watch’s Tom Malinowski. We were both asked by Senator Sheldon Whitehouse for our suggestions regarding an advisory panel he wanted to put together to make suggestions concerning detention matters. Malinowski spoke first:

the one point I would make is don’t just focus on the nitty-gritty challenge of what to do with detainee 1 and 50 and 48 in Guantanamo, but ask the big question of who should we be detaining as part of this larger struggle and how does detention fit into a strategy for winning. And I think you might get some interesting answers that are different from what you might expect if you start from that perspective.

I spoke immediately after and described something very much like the ultimate review task force:

Mr. Wittes. . . . I would actually say having a very intense focus on Guantanamo detainee 1 and 50 and 48–I think were the examples that [Malinowski] used–you know–

Mr. Malinowski. Don’t look at 49.

Mr. Wittes. Just don’t look at 49, right.

Mr. Wittes. I mean, I think the thing that really–when you peel all the layers of the onion away, the thing that separates his argument from mine, I think, is a sense of what the universe of the people who are unambiguously too scary to set free and not amenable to U.S. prosecution in U.S. federal court where it actually looks like. And I think you feel very different about this question if you believe that that is a very small group about whom the risks are very manageable, than if you believe that it is a very large group or even a mid-sized group about whom the risks are not particularly manageable. And one of the real problems that has pervaded this entire discussion–and I do not mean the discussion in this room today; I mean the discussion over 6 1/2 years–is that the quality of the information that is public about, you know, the universe of detainees is simply dreadful. And, you know, the administration has to take a lot of responsibility for that. But I think one thing that any commission or advisory body that you put together needs to look at is, you know–and I notice that both Mr. Malinowski and I in our written statements specifically said that you cannot responsible identify what the universe of the population is at this stage, and that matters enormously, because, you know, if it is five people and we could just, you know, have the NSA and the CIA watching them very carefully, I might be persuadable. If it is 120 people and, you know, they are people who are different from Abu Zubaydah only in one level below in the hierarchy and with–you know, and the difference is really that the evidence that we have is inadmissible–not that the evidence that we have is not real–I think he might be persuadable if I–I don’t know that. You would have to ask him. But I think it would change the discussion a lot if we knew what that universe of detainees looks like.

I stand by this. And I stand by the administration’s decision to go through every detainee–Detainees 1, 48, 50, and even 49–and make its own determination regarding whom it did and whom it did not need to continue detaining. What’s more, I think it did change the discussion quite a lot to know what the universe of detainees actually looks like. Even in general terms, it matters that we know how many detainees the administration thinks it can charge, how many it thinks it can transfer, how many it thinks it could transfer were circumstances to change, and how many it is committed to holding under the laws of war for the foreseeable future. This has had an enormously salutary effect on the debate.

Joscelyn is, to be sure, not wrong that the task force recommended people for transfer who previous reviews had considered “high risk.” It did so with open eyes, having reevaluated old evidence, looked at new evidence, and assessed certain resettlement opportunities that were not available to the prior administration. And importantly, the Obama administration has not, in fact, transferred any significant number of people from Guantanamo that the prior administration would not also have transferred had it had the chance. The difference in practice between the two administrations is largely one of opportunity, not attitude. Because European countries were much more willing to resettle Guantanamo detainees when the current administration requested it than when the prior one did, this administration had the chance to get rid of people the Bush administration had cleared long before but been unable to find homes for. What’s more, the additional risk the task force was willing to assume largely involved Yemenis and was in many cases contingent on conditions improving in Yemen–which they have not done. Almost none of this additional risk has been realized in practice, for reasons Bobby, Matthew Waxman and I laid out in this briefing paper on Yemeni transfers.

To put it simply, the Guantanamo task force did a really good job on an important project. It generated options for dealing with individuals and a certain analytical clarity regarding the status which different detainees should occupy in the future. Olsen has nothing to apologize for. And it will be a shame if Senate Republicans try to tar him with a fake issue.

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