Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
If the White House and Pentagon are going to make wise decisions about what to do with the Guantanamo Bay detainees they are going to need accurate information upon which to base their new policies.
Yet the single most cited "fact" last week about the terror suspects - that 61 of the men released from Gitmo have returned to fight against us - is simply not true. The number is far lower than that. And the longer "61" is used as a "talking point" by critics of the administration of President No. 44 the longer it will be before a viable solution is found.
The figure comes from a Pentagon press conference on January 13th - just a week before the end of the Bush Administration - in which a Defense Department spokesman declared: "The new numbers [for recidivists] are, we believe, 18 confirmed and 43 suspected of returning to the fight. So 61 in all former Guantanamo detainees are confirmed or suspected of returning to the fight." Many news organizations did the math - 18 plus 43 equals 61 -but negligently failed to include the important qualifier "suspected" for the "43" figure. Moreover, there is reason to doubt the accuracy of even the "18" figure the Pentagon seems more sure about.
Republican lawmakers immediately jumped on this sloppy math/reporting to bolster their argument that the White House is jeopardizing national security even by thinking about releasing more Gitmo prisoners. House Minority Leader John Boehner (R-Ohio) repeated the number over and over again. "Do we bring them into our borders," Rep. Boehner asked. "Do we release them back into the battlefield, like some 61 detainees that have been released we know are back on the battlefield? And do we release them to get back and rejoin this fight?" (Emphasis added).
As is often the case, the truth is much different from what our government tribunes say it is. And the experts whom we should trust to say so are Mark Denbeaux, a Seton Hall University law professor, and Joshua Denbeaux and R. David Gratz, lawyers for two of the detainees. The Denbeauxs have an impressive track record of combing through the U.S. military's own records to fully discredit overstated or downright false claims about the detainees made by bureaucrats, lawmakers and other public officials. The Denbeauxs' trenchant conclusions are powerful precisely because they are based upon the same information our leaders are supposed to use in leading us wisely.
Several years ago, for example, the professor, the lawyer and their colleagues went through Combatant Status Review Board Letters (essentially, the official "file" on the detainees) generated by U.S. military officials and then promptly shattered the myth that Gitmo held the "worst of the worst" of the terror suspects. Now Denbeaux and Company are back-again using the government's own "intelligence" - to bring clarity to the nature of determining how many Gitmo "recidivists" actually exist and whether any who do are a danger to our national security.
The new and timely study finds many reasons to discredit even the Pentagon's wishy-washy 18-43 split among the categories of "recidivist" detainees. Here's how the Seton Hall report reads in its Executive Summary: "In each of its forty-three attempts to provide the numbers of recidivist detainees, the Defense Department has given different sets of numbers that are contradictory and internally inconsistent with the Department's own data." And it's all downhill from there.
For example, the report notes that the Pentagon "does not keep track of released detainees nor does it follow their post-release conduct" and that the claimed number of these men has oddly gone up and down from time to time (what, are they recidivating in and out of Al Qaeda?).
Meanwhile, the Denbeauxs discovered from looking at Pentagon documents (and then comparing them later with public statements) that several prior "recidivist" claims by the Defense Department were later "repudiated" and that the information upon which the classifications were based was too "fragmented to ensure" that the men the Pentagon says have returned to battle against us actually have.
Moreover, the government's criteria which defines whether these men even ought to be classified in this fashion is opaque and somewhat nebulous. For example, the report indicates that "engaging in anti-U.S. propaganda" constitutes a "return to the fight" and then cites several examples of detainees who were not initially listed as "recidivist" but then made the list. Apparently, the "Tipton Three" - three English-speaking detainees - made the list only after they participated in the widely-viewed (and occasionally hailed) film, "The Road to Guantanamo."
So the "61" figure is a basically a sham and everyone who cares knows it. Perhaps this is why Newsweek's Michael Isikoff reported over the weekend that the Pentagon is going to release as early as this week declassified portions of a "secret report" that purports to provide new details on the so-called "recidivists." And perhaps the obvious holes in the "61" story also explain why wobbly Pentagon officials confirmed this past week that Said Ali Al-Shihri, a Yemeni national returned from Gitmo, has apparently become some sort of al Qaeda "deputy commander" (whatever that means).
The point is that even by the government's own faulty figures - never mind the true ones - the recidivism rate out of Gitmo is far less than it is out of America's own civilian, domestic prisons. That's the reality that ought to inform the public and private debate going forward about how to get the men out of that odious prison. We must be careful about whom we release.
We must ensure that those who are released are accurately monitored wherever they are. And we must acknowledge that the men who have been apprehended, branded as "killers," and then held with charges for years in prison far from their homes aren't likely to come out into freedom singing "God Bless America."