Task Force Conclusion: “Many” Detainees Were Legally Detained

While I was away celebrating my 20th college reunion this weekend (thanks for filling in, bmaz), the WaPo liberated the Gitmo Review Task Force report. As the WaPo reported, the big takeaway is the government’s admission that over 55% of those reviewed by the Task Force were what it called “low level fighters” in al Qaeda, the Taliban, or “associated groups.” The claim itself is not all that credible–and that doesn’t include some of the 20% whom the Task Force described as having some organizational role in al Qaeda but might just mean they’re one of Osama bin Laden’s seemingly infinite number of bodyguards. Just 10% were the “worst of the worst” that Gitmo was supposed to hold (the report did not name Abu Zubaydah among those, for example).

All of which might explain why the report was so desperate to claim that detaining these men all these years–well, “many” of them, anyway–wasn’t illegal.

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 legal basis for his detention.

No word about the others who have been detained for up to 8 years for whom the Task Force found no legal basis to hold.

Similarly, the report implies that torture was not why the government cannot prosecute “most” of the 48 detainees it has slated for indefinite detention.

Notably, the principal obstacles to prosecution in the cases deemed infeasible by the Task Force did not stem from concerns over protecting sensitive sources or methods from disclosure, or concerns that the evidence against the detainee was tainted. While such concerns were present in some cases, most detainees were deemed infeasible for prosecution based on more fundamental evidentiary and jurisdictional limitations tied to the demands of a criminal forum, as described above.

It describes those jurisdictional limitations this way:

Second, many of the detainees cannot be prosecuted because of jurisdictional limitations. In many cases, even though the Task Force found evidence that a detainee was lawfully detainable as part of al-Qaida–e.g., based on information that he attended a training camp, or played some role in the hierarchy of the organization–the Task Force did not find evidence that the detainee participated in a specific terrorist plot. The lack of such evidence can pose obstacles to pursuing a prosecution in either federal court or a military commission. While the federal material support statutes have been used to convict persons who have merely provided services to a terrorist organization, e.g., by attending a terrorist training camp, there are potential limitations to pursuing such a charge against the detainees. 21

21 Among these limitations: First, the two relevant statutes–18 USC 2339A and 2339B–were not amended to expressly apply extraterrorially to non-US persons until October 2001 and December 2004, respectively. Thus, material support may not be available as a charge in the federal system unless there is sufficient evidence to prove that a detainee was supporting al-Qaida after October 2001 at the earliest. Second the statute of limitations for these offenses is typically eight years (see 18 USC 3286), which may bar prosecution for offenses that occurred well before the detainee’s capture. Third, because the statutory maximum for material support is 15 years (where death does not result from the offense), sentencing considerations may weigh against pursuing prosecution in certain cases. Some of these considerations would not apply to material support charges brought in the military commissions; however, the legal viability of material support charges brought in the military commission system has been challenged on appeal in commission proceedings.

Let’s take a moment to lay out what these passages all suggest, but don’t admit candidly:

  • “Concerns” about tainted evidence explained why at least “some” of these people cannot be prosecuted. I take that as a shorthand admission that these men–or their accusers–were abused in US custody. And the solution, apparently, is to just keep them in custody. The report doesn’t say how the government can trust the evidence itself if it is tainted. I guess they just know.
  • For a significant number of the 48 men slated for indefinite detention, there is no evidence that the man participated in terrorism. Indeed, given the description, it appears there isn’t even any evidence the man took part in an attack on American troops (even granting the government claim that all such attacks were necessarily illegal and not self-defense, which is itself bogus). And given the timing implied by the October 2001 deadline, there’s not even any evidence these men continued their affiliation with Al Qaeda after 9/11 made it clear the organization was attacking US civilians. In short, a significant number of these 48 men are just like the mujahadeen the US used to fund in the glorious Reagan days. But in the glorious post-9/11 days, such actions qualify a man for indefinite detention.
  • The report also notes–without giving any details–that the eight year statute of limitations has expired for a number of these men. You see, we’ve held these men with no charges for so long that now we can’t charge them, so we’ll just indefinitely detain them with no charges instead (which has the added benefit that the standard of evidence for detention in a habeas proceeding would be lower than that in a civilian trial).
  • Finally, the report admits that it doesn’t want to charge some of these men with material support for terrorism because the 15 year maximum sentence presents “sentencing considerations.” To further translate, the government doesn’t want to charge these men with material support because they won’t be able to hold them long enough, even if they get a conviction. The government wants to hold them longer than Congress legislated the crime merited and so instead of charging them, the government will just hold them. Also logically included in that premise is the assumption that, first of all, this indefinite detention equates to “more than 15 years” of detention. And the assumption that the legal justification for holding these men–the AUMF–would extend at least 15 years from now.

And this is the best logic the Gitmo Task Force can give to justify the indefinite detention of 48 men.

There’s one more interesting detail in the report’s justification for indefinitely holding these men. It describes that they have a,

History of associations with extremist activity. Some of the detainees approved for detention have a history of engaging in extremist activities or particularly strong ties (either directly or through family members) to extremist organizations.

First of all, the AUMF does not authorize holding those with associations with extremist activity that is not in some way tied to al Qaeda or an associated force (see pages 8-9/PDF 12-13 for the report’s description of what is justified by the AUMF). And the reference to “particularly strong ties … through family members … to extremist organizations” may well refer to people like Mohamedou Slahi (and might describe Omar Khadr if they decide to drop the grenade charges against him). Judge Robertson, in ordering the government to release Slahi, found that the ties between him and al Qaeda were too attenuated to qualify–not to mention the fact that the government relied on information collected through abuse. (The Task Force report, dated January 22, noted that all four habeas petitions brought by those slated for indefinite detention that had been decided by the time of the report had been denied; but Slahi’s petition was granted in March.) In other words, with its final justification (which, though I’m NAL, doesn’t seem to fall under the government’s own description of what is justified under the AUMF), the government is trying to claim the right to detain men indefinitely based on attenuated associations, perhaps even with organizations aside from al Qaeda.

But don’t worry about all these inconvenient details. “Many” of these detainees were and are being legally detained.

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46 replies
  1. MadDog says:

    …“Concerns” about tainted evidence explained why at least “some” of these people cannot be prosecuted. I take that as a shorthand admission that these men–or their accusers–were abused in US custody. And the solution, apparently, is to just keep them in custody. The report doesn’t say how the government can trust the evidence itself if it is tainted. I guess they just know…

    Shorter “Up-is-Down” US Government: “So sorry Ali. If the evidence weren’t tainted, we’d let you go.”

  2. earlofhuntingdon says:

    “So many” of the detentions were legal? So how many were not?

    The beauty of “many” is that it is vague. It is not “most”, which means at least a simple majority. It is more vague than “a lot”, which implies a high number or large percentage, though not a majority. “So many”, in fact, could mean a few, a lot, a large minority, a majority, or, more likely, “we don’t have a clue, so we’ll just say ‘so many'”.

    The government must have exact numbers, of both prisoners and their status and the process used to determine it. The vagueness suggests using real numbers would be even more embarrassing. After all, the government has had nearly ten years to figure it out. A failure to have exact numbers would be even more embarrassing than finding out that only a few of these many prisoners had actually engaged in criminal behavior worthy of prolonged detention.

    • bmaz says:

      Well we know that the conservative DC District Court has found something like 37 out of 50 unjustified. What’s that, about 75%?

    • Loo Hoo. says:

      After all, the government has had nearly ten years to figure it out.

      Well, we haven’t really had a government for 8 of the last 10 years…

  3. earlofhuntingdon says:

    Isn’t keeping someone in custody because you can’t try them because you had no basis for the original detention – or because they were abused and you want to avoid admitting it in a public trial – simply continuing the abuse the government hopes to hide? And why isn’t that characterization obvious even to Chris Matthews and George Will, let alone the New York bloody Times?

  4. earlofhuntingdon says:

    The report seems to gloss over that there’s no basis for the original detention or for continuing it, but that our government plans to continue detaining these men because it feels like it, and to hide its own criminal conduct. Paging Dr. Kafka….

  5. skdadl says:

    Thank you, Marcy, for this analysis. It’s too late for me to respond with anything but tears, but I’ll be back tomorrow morning early.

    • Petrocelli says:

      Now, now … we’ve survived 8 years of Dubya & PapaDick. Keep a stiff upper lip, we’ll get through this together.

      • skdadl says:

        Hugs, Petro, but I’m beyond words otherwise. Harper … I mean, Harper. The only thing that keeps us from being worse is that we’re little. Otherwise, we would be worse!

        Ok. I’ll go to bed now. I’m getting irrational. Hugs to all. You can’t know how important y’all are to so many people who are trying to resist the spin, but you are.

        • Petrocelli says:

          Surrender if you wish, there are many others willing to carry on and the ranks are growing.

  6. PJEvans says:

    I figured they started with their desired conclusion and worked backwards from there. It makes more sense that way. To them.

          • PJEvans says:

            I still have calculators using it. (Especially the one that does funny arithmetic – those are hard to get hold of.)

        • Synoia says:

          No. Reverse polish notation is a mathematically precise method to start at the beginning and get a correct result without having to resort to complex rules (bars and brackets).

          Unfortunately for our leaders Reverse Polish does not mean start and the end and get the answer your boss wants. That’s called spin, and it’s taught in not Math classes, but business school and politics.

          /s

          • PJEvans says:

            I duno. I sometimes would work homework problems backwards fromt he answer in the book, so I could see where they were coming from.

            But in politics and business, yeah, it’s spin and it’s full of sh*t.

  7. Jeff Kaye says:

    Notably, the principal obstacles to prosecution in the cases deemed infeasible by the Task Force did not stem from concerns over protecting sensitive sources or methods from disclosure, or concerns that the evidence against the detainee was tainted. While such concerns were present in some cases, most detainees were deemed infeasible for prosecution based on more fundamental evidentiary and jurisdictional limitations tied to the demands of a criminal forum, as described above.

    Great analysis, Marcy, and you rightly called out this section and the “shorthand admission” of abuse. I just want to note that when it comes to keeping statistics (55% of the men this, 20% of the men that, etc.), the report’s authors are remarkably reticent on what percentage of the prisoners there had the “evidence” against them so “tainted.” I suppose, however, that this is the closest thing to a government admission of torture or cruel, inhumane, or degrading treatment as we will get from them re Guantanamo, and I’ll take that.

    My would-be headline: Guantanamo Report Admits Most Prisoners No Threat, Some Were Tortured

  8. prostratedragon says:

    I keep trying, unsuccessfully, to avoid boiling all that they said down to “cause we ain’t got no case.”

    Maybe less vinegar …

    (All persons are equal, however financial corporations and their top management some persons are more equal than others.)

  9. Loo Hoo. says:

    And that the Obama administration is continuing the Bush practices is heartbreaking.

  10. Jeff Kaye says:

    Just started looking at the report, and whoa… first thing hits me is their claim that “senior officials representing each agency responsible for the review reached unanimous determinations on the appropriate disposition for all detainees.”

    Now, how often in government do officials from different agencies, including in the IC, reach “unanimous determinations”? Not very damn often. 240 cases and 240 “unanimous determinations”? (I know they are speaking of the senior officials here, while the Review Panel as a whole was able to reach “consensus” “on a large majority of cases”). This means the report’s conclusions were either predetermined, subordinated to the “determinations” of a particular agency, or a classic job of groupthink. Such unanimity is concocted in order to make the audience feel that there was not much that any reasonable person could disagree with. But instead, it demonstrates that this is not a serious report to begin with, or certainly not one that can be trusted.

    This must be what reports from the Kremlin looked like.

    • emptywheel says:

      Remember that the lower level did the first review, so the seniors would only be involved if there were a disagreement at the lower level (I actually think IN THIS CASE getting unanimity is not a bad idea, as it’ll prevent the IC from bitching later). So at the higher level it either involved the rest of the group convincing the IC rep, or capitulating to that rep’s views.

      When this report first came out, there were people in Congress suggesting the others had overridden the IC people, which cannot be true (given this description) and may mean the IC people were pissed they got persuaded. Dunno.

      • klynn says:

        When this report first came out, there were people in Congress suggesting the others had overridden the IC people, which cannot be true (given this description) and may mean the IC people were pissed they got persuaded. Dunno.

        Is there any way to find out?

        (my bold)

        • klynn says:

          EW,

          The reason I asked my question @ 25 is that I see the point Jeff is making @20 but I also see your point @ 23.

          In my experience, when I see both points of view, the reality is somewhere in the middle. With your comment including the suggestion the IC was overidden, my “somewhere in the middle” perspective seems more plausible.

          If they did get persuaded in the smallest way, that’s a big problem.

          • emptywheel says:

            Note, I was just repeating what Republican members of some congressional committee (probably SJC) said to Holder when this list first came out. In other words, the suggestion that the IC was overridden is the claim the IC made to a bunch of people they told so as to cause trouble for Holder. That’s why I don’t put much stock in it. Which doesn’t give us a number of how many times the IC won an argument and how many times the rest of the players did. My guess is some mix, with the IC winning more often than not.

      • Jeff Kaye says:

        Perhaps just leave this unanimity business as curious and unexplained, though yours the best explanation.

        The other piece of important business in the report, which is “explained”, but which explanation shouldn’t be taken at face value, and is an important issue on its own, is the preponderance of Yemeni prisoners unreleased. 40 percent of the prisoners still at Guantanamo hail from Yemen, with the next largest group, 10%, from Afghanistan.

        I know all the “reasons”, i.e., supposed rise of Al Qaeda in Yemen. But what that actually constitutes is of some dispute. This is worth an article in itself, covering the differences on that question, the actual situation in Yemen (a country that had a bitter civil war not too long ago, and has much larger ethnic separatist movements than what Al Qaeda represents — like the Houthi in the north, who also threaten Saudi national sovereignty in their region, and restive tribal chiefs).

  11. klynn says:

    their claim that “senior officials representing each agency responsible for the review reached unanimous determinations on the appropriate disposition for all detainees.”

    (snip)

    This must be what reports from the Kremlin looked like.

    Yep. Often wonder if it is from the Kremlin. (Or reports from Nazi, Germany.)

    Great catch Jeff. Either you or Marcy should do a post just on THAT point of unanimous determinations for 240 cases. That is simply amazing math.

    Rove likes math.

  12. wavpeac says:

    Invalidation + trauma = terrorism and violence.

    This is the recipe…we whipped up a batch of terrorists and now Obama doesn’t know what to do with them.

    What’s the cure? Truth. Validation. Accountability. I know of no mechanism stronger and more effective than this. We must undo the perpetrator waltz of minimize, deny and blame:

    We accepted that we were powerless over money, sex, drugs, and power and that our lives had become unmanageable.

    We came to believe that a power greater than ourselves could restore us to sanity. (the constitution of the United States of America)

    We turned our will and our lives over to the care of our Constitution.

    There is validity and accountability in these steps and the ones that follow after this are even more powerful in terms of accountability and fixing the damage. Without these ingredients this nation will only continue to cycle and spiral downward. These patterns are bigger than any of our simple lives. They are written into the fabric of humanity. We cannot get around them.

    Marcy and Bmaz thank you so much for keeping a record of what has occurred and I am so grateful that so many people come to this site to seek the truth, instead of looking the other way. This may seem like no big deal but in the scheme of things, this behavior that we share, of WANTING to know is the essence of our survival and our ability to change things.

  13. b2020 says:

    “the government is trying to claim the right to detain men indefinitely based on attenuated associations”

    Sippenhaft!

  14. bobschacht says:

    True– covert Reverse Polish Notation requirement!

    Most moderns insist that you use different symbols for each pair of parentheses. In my day, only the two main symbols, ( and ) were used, and it was up to you to figure out if all your parentheses were balanced.

    Bob in AZ

  15. Mary says:

    How kewl is Obama?

    Who knew you could just put together a task force of guys from the Executive branch and determine legality of detentions that way.

    The unanimous decisions don’t surprise me at all – once there is an admissions that there was no legal basis for holding a detainee, you’ve made out the prima facie war crimes case. So you have the Exec Branch investigating itself to decide if itself has committed or is currently involved in the ongoing commission of a war crime.

    Big surprise that everyone signs off on what someone proffers as their cleanest sheet.

    The discussion of the Yemenis is really distressing and the fact that no one was even marginally or minimally willing to just flat out say what even the most conservative judges have said – that we held innocent people in Department of Justice sanctioned depravity – shows what little integrity Obamaco brought with it into office.

  16. jaango says:

    Getting at the Truth, is always difficult.

    And with this in mind, we, in this Indigenous Hemisphere, have our “nana Rationale” and which we cling to and rely on when faced with difficult situations.

    This was sent to me by a family member. Enjoy.

    LAWYERS SHOULD NEVER ASK A MEXICAN GRANDMA A QUESTION IF THEY AREN’T
    PREPARED FOR THE ANSWER. DURING A TRIAL IN A SMALL TOWN IN SOUTH TEXAS , THE
    PROSECUTING ATTORNEY CALLED HIS FIRST WITNESS, AN ELDERLY MEXICAN ABUELITA
    TO THE STAND.

    HE APPROACHED HER AND ASKED, “SENORA SANCHEZ, DO YOU KNOW ME?”

    SHE RESPONDED, “SI, I KNOW YOU MR. WILLIAMS. I KNOW YOU SINCE YOU WERE A
    MOCOSO CHORRIADO, AND FRANKLY YOU’VE BEEN A BIG DISAPPOINTMENT TO YOUR
    FAMILY AND TO YOUR COMMUNITY. YOU LIE, YOU CHEAT ON YOU WIFE, YOU MANIPULATE
    PEOPLE, AND YOU THINK YOU ARE A BIG SHOT WHEN YOU ARE NADA, PURA BASURA.
    YES, I KNOW YOU, BABOSO.”

    THE LAWYER WAS STUNNED! NOT KNOWING WHAT ELSE TO DO, HE POINTED ACROSS THE
    ROOM AND ASKED, “MRS. SANCHEZ, DO YOU KNOW THE DEFENSE ATTORNEY?”

    AGAIN SHE REPLIED, “CLARO QUE SI. I’VE KNOWN MR. RODRIGUEZ SINCE HE WAS A
    MOCOSO TRAVIESO TOO. HE’S A LAZY PUTO, AND HE HAS A DRINKING PROBLEM. HE
    CAN’T KEEP A NORMAL RELATIONSHIP WITH NOBODY, AND HE IS THE MOST PENDEJO
    LAWYER IN THE STATE, NOT TO MENTION HE CHEATED ON HIS WIFE WITH THREE
    DIFFERENT PUTAS. ONE OF THEM WAS YOUR WIFE! YOU MEMBER? I KNOW MR.
    RODRIGUEZ; HIS MAMA IS NOT PROUD OF HIM TAMPOCO.” THE DEFENSE ATTORNEY
    ALMOST DIED.

    THE JUDGE THEN CALLED BOTH COUNSELORS TO APPROACH THE BENCH, AND IN A VERY
    QUIET VOICE SAID, “IF EITHER OF YOU CABRONES ASK HER IF SHE KNOWS ME, I’LL
    SEND YOU TO THE ELECTRIC CHAIR. ”

    Jaango

  17. Hugh says:

    I came late. Three points.

    The federal government has lost 36 of 50 habeas petitions. So it looks like the Gitmo boys are scrounging around for other measures, or perhaps this is part of the evidentiary problems they allude to.

    Second, material support of terrorism is an unConstitutionally broad charge and this has been admitted by even people in the Administration.

    Third, the 8 year status of limitations only applies to cases which did not result in the deaths of anyone. There is no status of limitations on any such crimes where murder was involved.

  18. timbo says:

    There are the seeds for doing this inside the United States to US citizens in the way this is being setup. It’s very scary.

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