The “Detainees Subject to the Review”

MadDog linked to the letter that Dennis Blair and Eric Holder sent the Senate describing the process by which 6 agencies and a 100 staffers meticulously decided the ultimate fate of Gitmo detainees–who could be released or imprisoned elsewhere, who could be tried, and (presumably) who had to be held indefinitely. It might be a reassuring letter for its portrayal of the deliberation and rationality applied to Gitmo detainees.

Except for this phrase, repeated twice: “all 240 detainees subject to the review.”

After carefully considering each case, the six agencies reached unanimous agreement on disposition determinations for all 240 detainees subject to the review.


After all of the deliberations described above, the DNI-either personally for cases considered by Principals or by delegation to the ODNI official on the Review Panel-agreed with the other five agencies on disposition determinations for all 240 detainees subject to the review.

This process, apparently doesn’t apply to all detainees. Only the detainees “subject to the review.” Now perhaps they’re just making the distinction between Gitmo detainees and those in some black hole in Bagram or some other secret site. But it sure seems to be referring just to Gitmo detainees. In which case, there must be other Gitmo detainees, outside of the 240, who are not “subject to the review.”

Why? Who are they?

Executive Order 13492, which instituted this review, provides two potential hints. First, it provides this definition:

(c) “Individuals currently detained at Guantánamo” and “individuals covered by this order” mean individuals currently detained by the Department of Defense in facilities at the Guantánamo Bay Naval Base whom the Department of Defense has ever determined to be, or treated as, enemy combatants.

This would seem to leave out detainees held by CIA or contractors (maybe?). And it would seem to leave out those detainees whom DOD had simply never called nor treated as an enemy combatant. You know those family members Mary keeps asking about? They wouldn’t be enemy combatants, would they?

The EO also suggests DOD would have authority over any other detainees.

(a) Nothing in this order shall prejudice the authority of the Secretary of Defense to determine the disposition of any detainees not covered by this order.

So while this letter to the Senate sounds like a wonderful work of rational deliberation, it also seems to hint at some remaining Kafkaesque hole, whereby some people who have not been deemed enemy combatants remain in some arbitrary limbo not covered by this great display of rational deliberation.

Update: Hmmm is right: the EO lets the Secretary of Defense do what he will with all the other detainees (which I guess makes it especially useful if your Secretary of Defense is an old Chief Spook). I’ve fixed the post accordingly.

62 replies
  1. Hmmm says:

    The EO also suggests DOD would have authority over other DOD detainees.

    “(a) Nothing in this order shall prejudice the authority of the Secretary of Defense to determine the disposition of any detainees not covered by this order.”

    Well, to be strictly logical about that clause, the SoD’s authority there doesn’t seem to be limited to DoD detainees: “…any detainees not covered by this order” is pretty darn incredibly unbelievably broad.

    • emptywheel says:

      You’re right. I’ve fixed this accordingly.

      And pointed out that this makes it all the more useful if your SecDef is an old Spook in Chief.

    • PJEvans says:

      Yeah, there about 300 million people in the US that they can apply it to. And there are people in government who would very much like to apply it to some of them.

  2. burnt says:

    Well, there wouldn’t be any need for this sort of language if there weren’t some Kafkaesque hole we are warehousing people in, correct? Well, perhaps the Senate/House Intelligence Committees will look into this.


    Oh, well. You know, EW, if you are correct about this and Obama hasn’t done anything about it…

  3. skdadl says:

    We’re told (in fuzzy msm reports) that the prosecution of Omar Khadr, if it goes forward, will be the first time since WWII that a child soldier has been prosecuted in a Western nation. Does anyone know whether that is true?

    • MadDog says:

      I have no knowledge either way regarding the truth of that, but while not at all dismissing the importance of his youth, my disbelief has focused on the acts they are charging him with.

      As I commented last month over at Pat Lang’s SST blog:


      That may be an understatement in the case of Omar Khadr:

      …a young Canadian who was only 15 when captured in Afghanistan in 2002. Omar Khadr was seized by U.S. Special Forces following an attack on an Afghan compound during which someone threw a hand grenade at American soldiers, killing one.

      The U.S. contends Khadr was responsible for the death of Delta Force 1st Sergeant Christopher Speer, even though the Toronto Star has reported that classified defense documents indicate “Khadr was buried face down under rubble, blinded by shrapnel and crippled” at the time of the grenade attack…

      And this was after the place was pounded into rubble by close air support assets of the US:

      …Arriving at the scene, the Apaches strafed the compound with cannon and rocket fire…

      … a pair of F-18 Hornets dropped Mark 82 bombs on the houses…

      … pair of A-10 Warthogs arrived on-scene and began attacking the houses along with the Apaches…

      As a loyal American, I regret the injury or death of any of our brave US service members, so let no one mistake whose side I support.

      But taking sides is irrelevent here.

      I thought I understood the Laws of War, but I’m at a total loss to explain our nation’s actions and justice system in this case.

      Even to myself, much less to anyone else.

      Imagine being imprisoned for 8 years without trial, and now to be prosecuted by a military commission for the “war crime” of throwing a hand grenade at opposing forces.

      There is the battlefield ethic of “kill or be killed”, but it cannot be an ethic available only to one side.

      • skdadl says:

        Yes, it’s a double problem. On the one hand, he was a child soldier and shouldn’t be tried at all. On the other, he is likely innocent — there’s a memo somewhere that the NYT got its hands on that strongly suggests that (must find reference), and then there are the photos of how he was found, under the rubble. Plus, as you say, why is anyone who was in a firefight being tried for … fighting? In a real court of law, he would be acquitted, and doesn’t he deserve that chance?

        The reason the U.S. (at least one interrogator at Bagram was FBI) held him and started grilling him is obvious: his father, who genuinely was al-Qaeda. The kid had been places, seen things, and met people — that’s what “actionable intelligence” comes down to. And then after they’d abused him and wrongfully imprisoned him, it was all CYA for ever more.

        One bit of coercion we know about for sure: as late as 19 January last year, the last day of Khadr’s previous commission hearing, the FBI guy (name around here somewhere) testified again that Khadr had ID’d Maher Arar as someone he’d seen at a particular camp in Afghanistan. That story was disproved years ago by the RCMP and CSIS, and believe me, CSIS usually have no interest in exonerating anyone.

        • PJEvans says:

          I think they’re afraid of what Khadr (and the other innocents they’re holding) can tell the IRC and the courts about what’s being done. (IMO, telling the IRC and the courts is an excellent idea.)

      • thatvisionthing says:

        What category is Syed Fahad Hashmi in? I’ve been agonizing over him since I read Chris Hedges’ article from December called One Day We’ll All Be Terrorists. He’s an American of Muslim descent imprisoned in a Manhattan federal prison awaiting trial… for 2-1/2 years.

        The case against Hashmi, like most of the terrorist cases launched by the Bush administration, is appallingly weak and built on flimsy circumstantial evidence. This may be the reason the state has set up parallel legal and penal codes to railroad those it charges with links to terrorism. If it were a matter of evidence, activists like Hashmi, who is accused of facilitating the delivery of socks to al-Qaida, would probably never be brought to trial.

        Hashmi, who if convicted could face up to 70 years in prison, has been held in solitary confinement for more than 2½ years. Special administrative measures, known as SAMs, have been imposed by the attorney general to prevent or severely restrict communication with other prisoners, attorneys, family, the media and people outside the jail. He also is denied access to the news and other reading material. Hashmi is not allowed to attend group prayer. He is subject to 24-hour electronic monitoring and 23-hour lockdown. He must shower and go to the bathroom on camera. He can write one letter a week to a single member of his family, but he cannot use more than three pieces of paper. He has no access to fresh air and must take his one hour of daily recreation in a cage. His “proclivity for violence” is cited as the reason for these measures although he has never been charged or convicted with committing an act of violence.

        Did you catch the crime? It goes by kinda fast… “material support”… of facilitating the delivery of socks to Al-Qaida.

        We suck.

  4. earlofhuntingdon says:

    That EO, as is every other, was explicitly designed and meticulously prepared, so there are certainly other detainees besides those claimed to be enemy combatants.

    Given this and the prior administration’s penchant for Clintonesque parsing, one might even suggest that “illegal enemy combatants” are distinct from “enemy combatants”, and both are distinct from those the government has just decided to label as “enemies”.

  5. MadDog says:

    …After carefully considering each case, the six agencies reached unanimous agreement on disposition determinations for all 240 detainees subject to the review…

    (My Bold)

    One thing that struck me was the continued and repeated emphasis on “unanimous agreement” by the six agencies.

    Except when it appears there wasn’t. *g*

    As in the “Guantanamo Review Task Force” was chartered to perform this activity and they always had “unanimous agreement”, but somehow (excellently glossed over might I add), some of the detainee review decisions ended up being decided at the “Principals” level:

    …The Review Panel achieved consensus and reached unanimous determinations for the large majority of detainees. When Review Panel members did not reach consensus, cases were referred to the Principals. All cases referred to the Principals also ultimately garnered unanimous agreement…

    Shorter AG Holder/DNI Blair memo: “We were unanimous except when we weren’t.”

    • MadDog says:

      And does anyone want to bet that the default “unanimous agreement” when an agency objected wasn’t to continue to detain the detainee?

      • whitewidow says:

        Exactly. The decision was made unanimous only because they just didn’t recommend release for anyone if even one of the 6 agencies objected to their release.

  6. emptywheel says:

    I’m also interested in the emphasis they give to this:

    At the Review Panel, the Intelligence Community was represented by a senior official from ODNI whose views were informed by the intelligence analysts’ work at the Task Force and by senior CIA and FBI officials who participated independently in Review Panel meetings. In all cases, if the Intelligence Community objected to a particular decision, ODNI had the ability to dissent from a Review Panel vote and elevate the decision to Principals.

    That seems to be a response to this, which Carl Levin asked specifically:

    Specifically, the Chairman asked whether the Intelligence Community, including the Central Intelligence Agency (CIA) and the Defense Intelligence Agency (DIA), concurred in the decisions to approve the transfer of certain detainees to countries outside the United States.

    That is, this whole letter is about communicating to Levin (and his Ranking Member, McCain, and the SSCI leaders DiFi and Bond, who were copied on this) that the IC had the ability to veto any disposition decision.

    Of course, the CIA would have special reason to want to veto some of these, particularly if some of the people they tortured were going to be let free.

  7. JohnLopresti says:

    EO13492. **Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities. January 22, 2009.
    …§6. Humane Standards of Confinement. No individual currently detained at Guantánamo shall be held in the custody or under the effective control of any officer, employee, or other agent of the United States Government, or at a facility owned, operated, or controlled by a department or agency of the United States, except in conformity with all applicable laws governing the conditions of such confinement, including Common Article 3 of the Geneva Conventions. The Secretary of Defense shall immediately undertake a review of the conditions of detention at Guantánamo to ensure full compliance with this directive. Such review shall be completed within 30 days and any necessary corrections shall be implemented immediately thereafter.**

      • JohnLopresti says:

        I noticed the EO’s terms delegated to the Secretary of Defense conduct of the review, subsequent to which I wondered what might be fioa-able.

  8. fatster says:

    This probably doesn’t amount to a hill of beans, but the EO states there have been 800 enemy combatants at Guantanamo (Section 2) a)). It continues that 500 of these have been moved from Guantanamo by the feds. That leaves 300. The letter from Holder and Blair (dated Mar 18 17, 2010) states that unanimous agreement was reached “for all 240 detainees subject to the review” (second para). That leaves 60 detainees, apparently, who were not “subject to the review” which seems to mean they were not defined in Section 1) c) of the EO (“currently detained by the Department of Defense in facilities at the Guantánamo Bay Naval Base whom the Department of Defense has ever determined to be, or treated as, enemy combatants.”). Of course, the 60 could simply be the difference between the “approximately 800” detained and “more than” 500 since moved (EO 13492). Interesting.

      • fatster says:

        Isn’t that amusing, though? Does that mean they don’t have computers? They’re still using those old Selectrics? They lose video-tapes, emails, maybe even detainees, etc., but they still got them ol’ Selectrics, by gum.

        • thatvisionthing says:

          It’s only the date that’s apparently done by typewriter. The letter is in proportional word-processing type but not the date. Weird. Kudos to Holder/Blair though for having a Selectric still (with working ribbon and correction tape!) I loved the Selectrics, and how nice to still be able to leave no electron trail in their work. Also note no secretary’s initials at the end. Maybe they typed it themselves. Warms the cockles of my heart, thinking of them fending on their own like that, like a Neil Simon scene.

          • fatster says:

            I loved the old Selectrics, too. Supplemented my RA income in graduate school using one. Have you ever typed a master’s thesis for a music grad student that consisted of small sections of music scores inserted on most pages and you were absolutely forbidden to paste the sections on the pages, splice the pages for the inserts or even to put the inserts on separate pages as Exhibits? Oh, it was fun.

              • fatster says:

                It was, but the music student got his Master’s and my right thumb finally regained feeling after a few weeks (I had to use it to grip the inside of the Selectric top cover to ensure that my fingers on the little wheel that controls the platen could keep the platen perfectly still as the Selectric ball zipped from margin to margin printing a solid line, then move the platen down a precise something-of-an-inch and hold the it perfectly still–you get the picture– for each of the five lines of treble and bass). Ah, the desperation of graduate school!


          • thatvisionthing says:

            I’ve looked at other doj letter pdfs, and none of them have secretary’s initials on them. I think that’s really interesting, come to think of it, in terms of witnesses and accountability. Nobody can find Rosemary Woods anymore? Those initials used to be there for a reason.

        • fatster says:

          Thank you, EW.

          (For those interested, a cursory search yielded just a smattering of numbers for detainees at Guantanamo. There is a bit of data here, based on info from legal documents for 446 detainees in two groups (though I’m not certain there is no duplication), where the detainees are described as “men”, “most [of whom] were arrested in Pakistan by Pakistani authorities.” DOD filed documents on 132 of those men, 75 of whom were “not accused of taking part in hostilities against the United States or its coalition partners.” No mention of women and children. (An article using the same or similar data is here, numbers of people engaged in injurious or discipinary behavior are
          here, recidivism rates are here, and so on.) Interesting that so little organized info is available.)

  9. MadDog says:

    …The EO also suggests DOD would have authority over any other detainees…

    A couple of points:

    Per page 5 of that Peter Orszag letter (8 page PDF) from Wednesday:

    …Although pursuant to EO 13491, the CIA does not operate any long term detention facilities; it is still authorized to detain people on a short term transitory basis…

    And per that reference to EO 13491:

    …(g) The terms “detention facilities” and “detention facility” in section 4(a) of this order do not refer to facilities used only to hold people on a short-term, transitory basis…


    …(a) CIA Detention. The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future…

    The CIA has facilities other than “detention facilities” where it detains folks but aren’t called “detention facilities”.

    And when “detention facilities” are finally required (other than those CIA facilities where they detain folks but aren’t called “detention facilities”), the DOD steps in.

  10. fatster says:

    Not exactly on topic, but related:

    US military pushed for closure of CIA-Saudi website: report

    [They didn’t just push–they closed it.]

    “The US military in 2008 shut down a website set up by the CIA and Saudi Arabia to expose terror plots, angering both parties, who saw the site as a vital intelligence tool, the Washington Post reported Friday.”


  11. Mary says:

    I will offer up that some rationale for the DOD/other detainees issue at the time of the order may have been in connection with what the DOD was going to do with all the Iraqi detainees it had.

    It was supposed to hand them ALL over to Iraq in connection with withdrawal.

    It doesn’t seem that everything has been on the real up and up, though, and iirc there were reports of detainees at some places being shifted and moved and hid bc the US didn’t want to really comply – there was some bizarre statementby a soldier to the effect that people still being held were really bad guys, bc after all, we’d released a few thousand others (who, the implication went, were being held for no good reason)

    In any event, after the foot dragging, Obamaco got Iraq to “ask us” to continue to hold some

    At the Iraqi government’s request, the U.S. will continue to hold about 100 detainees who pose a high security risk, Quantock said, although he was not more specific about who would be kept in custody.

    In any event, Gates did have a lot of detainees not at GITMO that he has to do something with, and I guess the CIA approach of freezing them to death and stuffing them in an unmarked grave or helping Dostum stuff them in a shipping container and then in an unmarked grave, looked like it could use refining.

        • emptywheel says:

          Well, if they were Iraqis outside of Iraq, they’d be a war crime. But then that’s probably what lies behind door number 3. Aside from the smaller war crimes behind door number 1 and 2, I mean.

        • emptywheel says:

          Well, those Iraqis at least WERE in Camp Cropper, presumably through the period when Obama wrote in an “other” category into Gitmo with his EO.

          So, for starters, I’d be surprised if we took them out of Iraq, bc that’d still be a war crime and a fairly public one. But it also means that still doesn’t explain the “other” category here.

      • Mary says:

        I think that the language – ” the disposition of any detainees not covered by this order” is catchall that includes detainees not at GITMO as well as any subcategory of GITMO detainees who aren’t subject to the order. With the Iraqi pullout on the one hand, and the transfers into Bagram on the other hand, DoD has a lot of detainee isues. I guess if you tack on the fact that DoD *may* be involved in some of the renditions, then you have a lot of territory Obama is ceding to Gates.

        Re: “Iraqis” in Iraq, I think that as much as the transfers of Iraqis out of Iraq (the Article 147 violations that no one has worried about with any of the existing habeas rulings and the Obama admin is engaging in high profile assassinations by drone, so I don’t think they care about the 147 violations) there would be the issues of non-Iraqis captured/purchased/kidnapped and held in Iraq and non-Iraqis captured/purchased/kidnapped elsewhere and taken into Iraq at some point.

        While supposedly under the SOFA, the US has been ordered to hand over all thir party national, like the Iranian diplomats/QUDs consultants that it had been holding for years
        you have to wonder, since no good documenation has ever put together on Iraqi detentions whether the US really fully complied with this:

        At a news briefing, State Department Spokesman Ian Kelly said U.S. forces released the five men in response to an official order by the Iraqi government for the handover of all third county nationals held by U.S. forces.

  12. thatvisionthing says:

    I give, how do you type a musical note with a Selectric? I get the five bars, I don’t get the notes (O?), I don’t get the clef… and what astounding loopiness would’t let you paste in illustrations? Maybe you could have xeroxed them on the page in the right place and then typed around them?

    Ah, your link goes to kinda heaven. For hell, though… IBM Executives. At link, second and third down

    • PJEvans says:

      I worked at a company, in a sort-of-engineering group, where we filled in the blanks on our parts labels with an IBM Executive typer. (Plastic-flim self-stick labels, sprayed with Krylon Electronic coating afterward.) I don’t know if that was better or worse than the ones that had to be printed on the parts, in 2-mm type and black ink.

      • thatvisionthing says:

        I HAD to use an Executive once. They had keys, not a type ball, and fussy proportional type and were really an amazing technology yet miserable to use. As I remember it. LONG time gone. I went to IBM and got a manual for it and kept it handy. But I give IBM credit for going where no typerwriter had gone before. (2-mm type? I don’t remember type measured in mm, just pica or elite)

      • fatster says:

        and thatvisionthing @ 48. Those Executives seemed menacing to me. It was awesome to watch the secretaries who could use those things so masterfully.

        • thatvisionthing says:

          A rare sight? I never saw anyone who could use an Executive masterfully, but then again that’s just me, still shuddering to think of them, though fondly. It had such aspirations.

          • fatster says:

            I screamed “Eeeeeeeeeek!” and gave up on the Executives entirely that time I somehow or other (did I mention I’m clumsy?) managed to break–while typing–that freaky creepy little wire that would poke up immediately adjacent to the typing space.

              • fatster says:

                I’ll wake up in the middle of the night laughing out loud, remembering that comment. Many, many thanks.

                • thatvisionthing says:

                  The thanks are all mine, it’s been fun remembering and nice to fit in someplace here. I have such respect for Marcy and everyone at fdl and that includes all of you regular commenters who actually follow and understand the discussion. I get so lost, but I recognize that this is the place where the energy is to get these atrocities exposed and justice done after all. God bless you every one.

                  • fatster says:

                    “. . . I recognize that this is the place where the energy is to get these atrocities exposed and justice done after all.” Situations constantly being uncovered here are astoundingly complex. I too paddle as fast as I can trying to keep up. We’re all in this together. Please keep paddling right along with me.


    • fatster says:

      The grad student inked them in, and that was allowed. Doing the lines exhausted my capabilities, fer sure.

      I think the goofiness stemmed from concern that the thesis was an original work, thus the prohibition on copying-and-pasting. And do remember this was a long-ago era. Did you ever operate a duplicating machine? You know, generating leaflets and stuff? That was considered very sophisticated at the time.

      I had friends who dug ditches to help get through grad school, so sitting typing at a Selectric wasn’t so bad in comparison.

      • fatster says:

        PS Go here for a merry tour through early technology of such things. I had almost forgotten the old mimeograph machines. They were the pits, particularly since I was allergic to the fluid used.

          • thatvisionthing says:

            I remember CORRECTING stencils — you had to paint over the hole and then get the registration exactly right to type the correction in… ah the satisfaction of skilled labor. Makes me smile to remember it, though I think I’d have rather dug some ditches.

          • fatster says:

            You should get it bronzed, Bob.

            What a trip down memory lane we’ve had. I’m gonna copy these few comments and save them to chuckle over later. Thanks very much to all of you for this special moment.

            Now, let me tell you about the time four or five of us tried to crash a small-town Klan rally . . .

            See y’all over at the incredible post and comments on authorization (or NOT) for DOD torture after 2004.

        • thatvisionthing says:

          THE PURPLE!!! omg, Kennedy hasn’t been assassinated yet and the nurse at our school in an office in the office was named Mrs. Kennedy. It all comes back.

          Also the brown… this one was sweet, my dad was in the Navy and he took us kids into the office with him one weekend and let us mimeo (or whatever) horse pictures from our coloring book. You ended up with a negative master and brown-ink copies. Both awesome, I bet there’s a box in mom’s house with them still in it.

      • emptywheel says:

        Btw, I’ve got a friend who is a composer, and she was just bitching the other day about doing parts for one of her pieces. While they have software to do the score now, it looks really ugly and has to be fixed after it generates teh parts.

        • fatster says:

          Another friend, quite an accomplished musician, now in retirement, does scoring. I’ll see what he might advise.

      • thatvisionthing says:

        I remember copying an illustration of Yoko Ono onto a corner of a page and then typing around it with a Selectric for a paper on Grapefruit in college. Totally charmed me, little Jack Horner, that’s about the only paper I remember from college, even though I can’t remember a word of what I wrote now. I think she perplexed me.

        I’m even more thrown by the copiers now that fax and make biscuits and tell you you’ve got the wrong size paper even though the paper is just fine. You want to tell it, no, really, look for yourself, but they still won’t listen. Sigh.

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