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Memo to the Slate Political Gabfest: What Cleared for Transfer Does—and Does Not—Mean

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Monday, May 6, 2013 at 2:00 PM

I have been fretting for the last few weeks about the amount of misinformation that has been floating around the press coverage—and particularly the commentary—of the Guantanamo hunger strikes. But I was sent over the edge this weekend when I listened to the latest episode of the normally-excellent Slate Political Gabfest. The Gabfest is one of my favorite podcasts, and—I should disclose—two of its principals (David Plotz and Emily Bazelon) are personal friends. It is generally insightful and full of wit and good humor. So I was particularly annoyed at the—sorry, guys—maudlin discussion of both the facts and the law of Guantanamo. The discussion leads this week’s show and contains a number of serious misconceptions about what is going on at the base. I’m going to address only one of these misconceptions here.

The most important of the misconceptions, which drives a lot of the others and undermines the entire discussion, is the repeated insistence that more than 80 detainees at the site are cleared for release. Bazelon makes this point right up front, and it is true in a very limited sense, though not in the sense that she means it or that her words would convey to the listener—that is, that these are people whom the administration has determined are innocent or not dangerous or are unlawful to hold in detention. Fleshing out her misreading, John Dickerson emphasizes that “these are people who should be roaming the earth free.” None of the participants in the Gabfest resist this characterization at all. The result is that a reasonable listener would come away thinking Guantanamo is literally half full of innocents who have been “cleared” yet are being held anyway, in contravention of deep legal principles—as Bazelon puts it, “scores of people who are being held essentially for no reason.” Bazelon later emphasize that their plight is all about politics, and she and Plotz both describe detention at Guantanamo as undermining the rule of law, the Constitution, and human rights.

The trouble is that “cleared for transfer”—and the detainees are cleared for transfer, not release, by the way—does not mean anything of the sort that the Gabfest discussion assumes pervasively and says directly a few times. The administration’s Guantanamo Task Force emphasized, in identifying this category of detainee, that it reflected a prudential judgment that the risk certain detainees posed could be managed by means other than detention (See page 17 of the task force report). The task force wrote that,

It is . . . important to emphasize that a decision to approve a detainee for transfer does not equate to a judgment that the government lacked legal authority to hold the detainee. To be sure, in some cases the review participants had concerns about the strength of the evidence against a detainee and the government’s ability to defend his detention in court, and considered those factors, among others, in deciding whether to approve the detainee for transfer. For many of the detainees approved for transfer, however, the review participants found there to be reliable evidence that the detainee had engaged in conduct providing a lawful basis for his detention (emphasis added).

It also wrote that,

a decision to approve a detainee for transfer does not reflect a decision that the detainee poses no threat or no risk of recidivism. Rather, the decision reflects the best predictive judgment of senior government officials, based on the available information, that any threat posed by the detainee can be sufficiently mitigated through feasible and appropriate security measures in the receiving country. Indeed, all transfer decisions were made subject to the implementation of appropriate security measures in the receiving country, and extensive discussions are conducted with the receiving country about such security measures before any transfer is implemented. Some detainees were approved for transfer only to specific countries or under specific conditions, and a few were approved for transfer only to countries with pending prosecutions against the detainee (or an interest in pursuing a future prosecution). Each decision was made on a case-by-case basis, taking into account all of the information about the detainee and the receiving country’s ability to mitigate any threat posed by the detainee. For certain detainees, the review participants considered the availability of rehabilitation programs and mental health treatment in the receiving country. The review participants also were kept informed of intelligence assessments concerning recidivism trends among former detainees (emphasis added).

In other words, the fact that a detainee is cleared transfer does not mean that there is any legal deficiency with respect to his detention. It does not mean he poses no danger. And critically, it does not mean that the government thinks he should be released without regard to conditions or circumstances. The only thing it means is that the government has determined that under some set of possible arrangements, which may take time and energy to negotiate, the threat he poses might be adequately mitigated by means short of continued detention. To put it simply, it emphatically does not mean that that these detainees should be roaming the earth free or that they are being held for no reason. 

One other note: In the Gabfest discussion, Plotz discusses Slate‘s recent decision to publish the memoir of Guantanamo detainee Mouhamedou Ould Slahi. In doing so, he describes Slahi as someone with Islamist tendencies against whom the United States didn’t really have anything concrete, who was not involved in terrorism but who was in wrong places at wrong times. Dickerson adds to this rather gentle description we really don’t know what the dirt is on this guy. On this point, I refer the reader—and the participants in the discussion—to my earlier post on what we do and do not know about Slahi, about whom we actually know a fair bit. Let’s just say that at a minimum, this is a guy who swore an oath of loyalty to Osama Bin Laden, wired money for a senior Al Qaeda figure, hosted two of the 9/11 hijackers at his house, and when he flipped, provided information on Al Qaeda that was so useful that he is now—along with one other major informant—held separately from other detainees and given special living arrangements at the site.