Some Guantanamo Detainees Are Terrorists

Benjamin Wittes has an interesting piece in The New Republic with the curious subtitle “Think the Guantanamo detainees are all innocent? Think again.”

He details known facts about the several of them, proclaimed “innocent” by their attorney before the Supreme Court last week, who are certainly terrorists by any reasonable definition. He closes,

Some Guantanamo Detainees Are Terrorists For the past six months, I have been studying declassified materials from Defense Department reviews of Guantanamo cases: transcripts and records of the much derided panels known as the Combatant Status Review Tribunals (CSRT) and Administrative Review Boards (ARB). While my data are not yet fully complete, the general picture of the people who went through these reviews, many of whom have been released, is clear: About a third of detainees admit facts that offer significant–though not always adequate–support to the government’s contention that they are “enemy combatants.” About a third deny everything. And about a third make no statements at all. (While some military interrogations have been coercive and the CIA has probably crossed over into outright torture, nobody has alleged that these particular statements, which took place in hearings before panels of officers, were involuntary.) This approximate ratio has remained relatively consistent even as the population at Guantanamo has shrunk.

But the question is not whether there are any terrorists at Gitmo but rather whether we should be able to more-or-less arbitrarily detain people, with no hint of due process, for years on end. Surely, the fact that upwards of a third of those detained actually are terrorists does not render that question meaningless.

Credit: Getty Images

FILED UNDER: Intelligence, Supreme Court, Terrorism, , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. James,

    I agree that Wittes is asking the wrong question, but my concern is the answer to the right question as you posed it:

    But the question is not whether there are any terrorists at Gitmo but rather whether we should be able to more-or-less arbitrarily detain people, with no hint of due process, for years on end.

    I haven’t been able to get from the numerous stories on this exactly what the critics of the detention do want.

    For instance, at times it sounds like they want these people moved into the federal court system and granted a constitutional right to habeas corpus. Am I misreading this? If they simply want Geneva Convention rights enforced I don’t have a problem with that, realizing of course that most of these people don’t fit the description of soldiers (identifying insignia, uniforms, weapons carried in the open, etc.).

  2. Steve Plunk says:

    Capturing many of these people, if not most, on the battlefield would make it less than arbitrary. It’s not like we pulled them off the streets of the United States and locked them up.

    It’s not our fault they ended up being not quite civilian terrorists and not quite soldiers. How we are dealing with them seems to be working it’s way through the courts so we will have something of a final say. Each side in the debate should continue to argue vigorously.

  3. The ultimate question is, does the “Blackstone ratio” apply in the same manner for the state’s prosecution of terrorists as it does when we are discussing the state’s prosecution of criminals?

  4. Christopher says:

    Granted a constitutional right to habeas corpus??? THEY ARE NOT US CITIZENS AND THEREFORE ARE NOT GRANTED THOSE RIGHTS!

    Geneva Convention rights enforced??? THEY WERE CAPTURED ON THE BATTLEFIELD FIGHTING US AND WORE NO UNIFORMS AND THEREFORE DO NOT GET GENEVA RIGHTS!!!!

    I know liberals have a problem with all this. If it were up to them, they would pardon the whole lot (like Bill Clinton liked to do w terrorists) but luckily, for a while at least, they are not in control. God help the security of the USA of Dems win the presidency.

  5. James Joyner says:

    I haven’t been able to get from the numerous stories on this exactly what the critics of the detention do want.

    That’s a fair question. I agree that they’re in a gray area between citizens entitled to full due process and habeaus rights (except for those handful who actually ARE US citizens) and that they’re not truly EPWs and entitled to full Geneva rights.

    Still, they’re surely entitled to some sort of due process. At bare minimum, they should have some right to present evidence that they’re no who we say they are.

  6. vnjagvet says:

    It is clear, it seems to me, that if the detainees were, in fact, in uniform when captured on the battlefield, they would be classified properly as prisoners of war, and would be “entitled” to be incarcerated as such until hostilities were over. The process that is “due” under these circumstances is capture and incarceration.

    What I cannot grasp is why a detainee who is out of uniform when captured on the battlefield should be entitled to more due process than prisoners of war. I would think such an individual is “due” less process, not more than a POW. Thus indefinite incarceration does not trouble me under the circumstances. If it is good enough for a POW, it is good enough for one who deserves less consideration.

    Where is the chink in this reasoning?

  7. anjin-san says:

    THEY ARE NOT US CITIZENS AND THEREFORE ARE NOT GRANTED THOSE RIGHTS!

    Christopher can you possibly be this ignorant? The US, is, or perhaps was, a nation of laws. These laws, and the right to due process of law, apply to non-citizens on our soil. Why do you think they are keeping them at Gitmo, proximity to good cigars?

  8. dutchmarbel says:

    For instance, at times it sounds like they want these people moved into the federal court system and granted a constitutional right to habeas corpus. Am I misreading this?

    yeah, it is this weird foreign idea that you should have trials and provide evidence before you lock people up for years, that keeping even the accusations secret from the accused is a breach of human rights. Not to mention the equally foreign idea that the evidence should be trustworthy, so if people are tortured we don’t assume their confessions legal.

    It’s not like we pulled them off the streets of the United States and locked them up.

    The majority was not picked up on the battlefield but came from other countries and quite a lot were delivered by bounty hunters, who were paid thousands of dollars. From the AP, who tried to discover what happened with detainees who were sent home after years of imprisonment and no trials:

    •Once the detainees arrived in other countries, 205 of the 245 were either freed without being charged or were cleared of charges related to their detention at Guantanamo. Forty either stand charged with crimes or continue to be detained.

    •Only a tiny fraction of transferred detainees have been put on trial. The AP identified 14 trials, in which eight men were acquitted and six are awaiting verdicts. Two of the cases involving acquittals — one in Kuwait, one in Spain — initially resulted in convictions that were overturned on appeal.

    •The Afghan government has freed every one of the more than 83 Afghans sent home. Lawmaker Sibghatullah Mujaddedi, the head of Afghanistan’s reconciliation commission, said many were innocent and wound up at Guantanamo because of tribal or personal rivalries.

    •At least 67 of 70 repatriated Pakistanis are free after spending a year in Adiala Jail. A senior Pakistani Interior Ministry official said investigators determined that most had been “sold” for bounties to U.S. forces by Afghan warlords who invented links between the men and al-Qaeda. “We consider them innocent,” said the official, who declined to be named because of the sensitivity of the issue.

    •All 29 detainees who were repatriated to Britain, Spain, Germany, Russia, Australia, Turkey, Denmark, Bahrain and the Maldives were freed, some within hours after being sent home for “continued detention.”

  9. dutchmarbel,

    You missed my point. I don’t want a constitutional right extended foreigners not apprehended on our soil. A treaty right would be fine.

  10. LaurenceB says:

    In answer to Robert Prather’s (very reasonable) question:

    In my opinion, those who are captured in Afghanistan and Iraq (regardless of whether or not they wore uniforms) should be designated POWs. Those captured elsewhere are presumably terrorists, and should therefore be charged and tried as such.

    It’s that simple.

    My reasoning for granting POW status to non-uniformed fighters in Afghanistan or Iraq is pretty simple – in these wars, the U.S. is the invading party (rightly or wrongly). That being the case, it seems unreasonable to me that a civilian of Afghanistan or Iraq who opposes the invasion should be required to acquire a uniform before picking up a gun. Please understand – I’m not trying to make any judgment on the rightness or wrongness of the invasion – only pointing out the reality on the ground.

    I don’t see the need for Guantanamo or all of these newly invented systems for trying it’s detainees.

  11. Hal says:

    I’d also like to point out that the Supreme Court ruled that Guantanamo is US soil, not “outside” of the US. So, constitutional rights granted to persons – not just citizens – apply.

    As to the title of the piece referred to in this post, I don’t know a single person who thinks the detainees are all innocent. It’s a rather deceptive title who’s sole purpose seems to be to frame the argument against the treatment of detainees in the poorest light possible.

  12. Christopher says:

    Name calling now anjin-san? Bleeding heart libs u gotta love ’em!

  13. Mark Jaquith says:

    Think the Guantanamo detainees are all innocent? Think again.

    What a ridiculous straw man.

  14. Bob says:

    dutchmarbel,

    So what you’ve told us there is an existing workable process that is reviewing the individual’s cases and is returning those deemed innocent to their home countries. So explain to me why then you feel the need to provide them access to federal courts? I think in some ways the easiest thing is to declare them POWs and simply imprison them for duration.

  15. dutchmarbel says:

    No Bob, I said that you lock up people who in majority are innocent and whom are sent home *without trials* after years of imprisonement during which quite a lot are tortured. I also said that most of the prisoners were NOT from the battlefield of Afghanistan but were picked up in other places. There is an abundance of stories that show how horrible their fate was.

    Stating that *some are not innocent* is not even close to a justification for the treatment all these people (including children) received. These days in the US it *may* be seen as a workable process to some, but that says more about those “some” than about the process.

  16. dutchmarbel says:

    I’d allready written the previous comment when I encountered this piece in the Washington Post. It is about a ‘reintegration program’ for Saoedi-Arabians who were sent home from Guantanamo Bay.

    For five years, Jumah al-Dossari sat in a tiny cell at the U.S. prison at Guantanamo Bay, Cuba, watched day and night by military captors who considered him one of the most dangerous terrorist suspects on the planet.

    In July, he was suddenly released to his native Saudi Arabia, which held a very different view. Dossari was immediately reunited with his family and treated like a VIP. He was given a monthly stipend and a job, housed and fed, even promised help in finding a wife. Today, he is a free man living on the Persian Gulf coast.

    [cut]

    The Saudi government contends that the reintegration program helps break the terrorist mind-set by linking former detainees with their families, their communities and a stable lifestyle. “No one who has gone through the program, completed it and been released has presented a threat,” said Adel al-Jubeir, the Saudi ambassador to Washington.

    Defense attorneys, human rights advocates and former Guantanamo detainees say, however, that the Saudi program works because most of the men held at Guantanamo were not a threat in the first place.