Detention & Guantanamo

What Gordon England Didn’t Tell You about Guantanamo Transfers

By Scott Roehm
Monday, February 15, 2016, 9:39 AM

In last Sunday’s Washington Post, former Deputy Secretary of Defense Gordon England challenged current Defense Secretary Ash Carter to resign before transferring any more detainees from the Guantanamo detention facility. According to England, the Obama administration is recklessly and randomly shipping out “high risk” detainees “who will almost certainly rejoin the fight.”

Those are serious charges, especially from somebody with England’s experience and expertise; he was both a two-time Secretary of the Navy and “the senior government official responsible for the decision to transfer or release enemy combatants from Guantanamo” during the last five years of the Bush Administration. And yet—surprisingly—England makes no mention whatsoever of the actual recidivism rate (according to the Director of National Intelligence) about which he warns, or the actual transfer decision-making process he condemns. We know plenty about both, and what we know refutes much of what England claims.

According to DNI, only 4.9 percent of detainees transferred out of Guantanamo by the Obama administration are more likely than not to have subsequently engaged in terrorism.

Every six months, DNI—in consultation with the CIA Director and the Secretary of Defense—makes publicly available an unclassified “Summary of the Reengagement of Detainees Formerly Held at Guantanamo Bay, Cuba.” England’s Washington Post piece links to one of these reports, but he does not identify it, much less discuss it.

According to DNI’s most recent report, through July 2015, the Obama administration had transferred 121 detainees out of Guantanamo. (The Obama administration has transferred an additional 25 detainees since July 2015. Those transfers will be accounted for in DNI’s next reengagement report, which should be released in mid-March 2016.) Only six of those 121 have been “confirmed of reengaging,” a determination DNI makes through application of a relatively modest preponderance of the information standard. In other words, using a more-likely-than-not test—rather than, for example, requiring proof by clear and convincing evidence—the DNI has concluded that only 4.9 percent of detainees transferred under Obama have had subsequent direct involvement in terrorism. (An additional 4.9 percent are “suspected” of reengaging based on a much lower standard of evidence.)

England maintains that none of the detainees remaining at Guantanamo when President Obama took office were suitable for release, and that “[s]tatements to the contrary by the White House are misleading at best.” The DNI’s numbers clearly suggest otherwise. In fact, the reengagement rate for detainees transferred under President Obama is less than a quarter of the reengagement rate for detainees transferred under President Bush (20.9 percent).

Save for last year’s prisoner swap and a handful of court-ordered transfers, the Obama administration has only resettled or repatriated Guantanamo detainees after a rigorous interagency process has unanimously cleared them for transfer, and since 2011 pursuant to statutory restrictions that require agreements with transfer countries to substantially mitigate the risk of a detainee engaging in terrorism post-transfer.

There are two mechanisms through which Guantanamo detainees have been or can be cleared for transfer: the 2009-10 Guantanamo Review Task Force and the ongoing Periodic Review Board process. England mentions neither of these in his piece. Yet both involve exactly the sort of “careful vetting” that he says the Obama administration has abandoned.

Let’s consider the Task Force first. During his first week in office, President Obama issued an Executive Order requiring a comprehensive interagency review of the status of every detainee then at Guantanamo. The Task Force was chaired by senior officials from the Department of Justice, Department of Defense, Department of State, Department of Homeland Security, Office of the Director of National Intelligence, and Joint Chiefs of Staff. Its purpose was “to collect and examine information from across the government to determine which detainees the United States should transfer or release from custody, prosecute, or otherwise lawfully detain.”

The Task Force was staffed by more than 60 career professionals from the agencies listed above, as well as the FBI, CIA, and National Counterterrorism Center. As described in the Task Force’s final report, staff gathered and consolidated information on detainees from across the government.

The documents assembled by the Task Force include summaries of biographic and capture information; interrogation reports from custodial interviews of the detainees; records of Department of Defense administrative proceedings involving the detainees, i.e., Combatant Status Review Tribunals and Administrative Review Board proceedings; the results of name traces run for detainees in certain intelligence databases maintained by the Central Intelligence Agency and National Security Agency; the results of name traces run for detainees in law enforcement databases maintained by the Federal Bureau of Investigation; investigative records maintained by the Office of Military Commissions–Prosecution (“OMC”) and Criminal Investigative Task Force within the Department of Defense; records assembled by the Department of Justice for purposes of defending habeas litigation brought by detainees to challenge their detention; recidivism assessments concerning former detainees; finished intelligence products on the detainee population and on general topics of interest to the Task Force’s work; and information concerning potential destination countries for detainees approved for transfer or release. The Task Force also accepted written submissions made on behalf of individual detainees by their counsel or other representatives.

Additionally, the Task Force had access to a variety of external networks containing additional information on the detainees, including documentary and physical evidence recovered through counterterrorism operations, and records concerning the behavior, disciplinary infractions, and physical and mental health of the detainees during detention. Over the course of the review, the Task Force also received briefings from the intelligence community on a number of topics relevant to the review.

After evaluating this information, the Task Force designated a detainee eligible for transfer only if “any threat he pose[d] could be sufficiently mitigated through feasible and appropriate security measures.”

Moreover, as the Principal Deputy Undersecretary of Defense for Policy explained in testimony before the Senate Armed Services Committee last year, before transferring any detainee cleared by the Task Force the Obama administration conducts an updated threat/risk assessment. (The relevant exchange begins at 46:35 of the hearing video.)

President Obama also established the PRBs through an Executive Order, and Congress effectively codified them in section 1023 of the 2012 National Defense Authorization Act. The PRBs are required to conduct full reviews—including hearings—for each detainee every three years, and file reviews every six months in between.

The PRB decision-making panel is made up of senior representatives from the same cross-section of the national security community as was the Task Force. Its job is to decide whether continued detention of those not yet cleared for transfer is “necessary to protect against a continuing significant threat to the security of the United States.” The PRBs have access to all of the information provided to and produced by the Task Force and any prior PRB, as well as any additional relevant information. The PRBs may also consider “diplomatic considerations or security assurances related to the detainee's potential transfer, the detainee's mental and physical health, and other relevant information.”

The PRBs are woefully behind schedule, having completed only 20 reviews to date. Seventeen of those detainees have been cleared for transfer.

But being cleared for transfer is only the first step in a Guantanamo detainee’s being resettled or repatriated. Beginning in 2011, Congress has imposed annually a variety of restrictions on detainee transfers. Under current law (section 1034 of the 2016 NDAA), the Secretary of Defense cannot resettle or repatriate even a cleared detainee unless he first certifies to Congress, at least 30 days in advance, that:

  1. The transfer is in the national security interests of the United States.
  2. The country to which the detainee will be transferred
    • is not a designated state sponsor of terrorism;
    • controls each detention facility in which the detainee would be held if that is a condition of the transfer;
    • has or will take steps to substantially mitigate any risk of reengagement;
    • has agreed to share with the United States any information related to the detainee; and
  3. For any transfer country that has previously received a detainee whom DNI has identified as having engaged in terrorism post transfer, the Defense Secretary has considered such cases and determined that measures have been taken to substantially mitigate any risk of reengagement with respect to the proposed transfer.

The Defense Secretary must also include in his certification an intelligence assessment of the capacity, willingness, and past practices of the transfer country with respect to the above requirements.

On top of these restrictions, Congress has banned transfers to Libya, Somalia, Syria and Yemen in their entirety. (See section 1033 of the 2016 NDAA).

* * *

Whether and how to close Guantanamo and the cost-benefit analysis associated with different steps toward reducing the detainee population are legitimate subjects for debate. But far too often such debates skip over important facts. It is perfectly reasonable to take issue with the Obama administration’s approach to detainee transfers and to opine on the risk associated with those transfers, but anyone doing so should be clear about what that approach actually is and what the intelligence community has documented about the attendant risk.