July 14, 2011 | The Weekly Standard Blog

Questioning ‘High’ Risk Gitmo Detainee Transfers

July 14, 2011 | The Weekly Standard Blog

Questioning ‘High’ Risk Gitmo Detainee Transfers

On July 1, President Obama announced that he was nominating Matthew Olsen for the position of National Counterterrorism Center (NCTC) director. Olsen has served in a number of national security-related government positions, including as the head of Obama’s Guantanamo Review Task Force.

As one of his first acts in office, Obama authorized the task force to review each Guantanamo detainee’s case files as his administration prepared to close down the detention facility within one year – a goal that proved to be unattainable for a variety of reasons. The task force made recommendations as to which detainees should be prosecuted (either in military commission or federal court), held indefinitely, or transferred to another country. (No detainees were approved for outright release.)

The task force approved most of the detainees remaining at Guantanamo for transfer, clearing the way for the Obama administration to empty most of the detention facility’s cells.

But a review of leaked detainee threat assessments reveals that many of the detainees approved for transfer by the task force were deemed “high” risks by Joint Task Force Guantanamo (JTF-GTMO), which oversees the detention and interrogation of detainees. Moreover, JTF-GTMO recommended that most of these detainees be retained in U.S. custody – precisely the opposite of the task force’s recommendations.

The NCTC’s director position requires Senate confirmation. So will senators question Olsen’s role on the task force, and the task force’s willingness to approve a large number of “high” risk detainees for transfer?

Comparing the task force’s decisions to JTF-GTMO’s recommendations

In its final report, dated January 22, 2010, Olsen’s task force reported that 126 detainees, out of a total of 240, were “approved for transfer.” An additional 30 Yemeni detainees were “designated for ‘conditional’ detention based on the current security environment” in their home country. The 30 Yemenis were “not approved for repatriation to Yemen” at the time, “but may be transferred to third countries, or repatriated to Yemen in the future if the current moratorium on transfers to Yemen is lifted and other security conditions are met.” (Al Qaeda in the Arabian Peninsula attempted to blow up a Detroit-bound airliner on Christmas Day 2009, less than one month before the task force’s report was finalized. The “moratorium on transfers to Yemen” was put in place only after the failed attack.)

Therefore, the task force approved a total of 156 Guantanamo detainees for transfer – or 65 percent of the total detainee population.

Compare the task force’s results with JTF-GTMO’s recommendations.

In late April, 765 JTF-GTMO detainee threat assessments were leaked online. THE WEEKLY STANDARD has been able to match 239 of these threat assessments to detainees that the New York Times has identified as being held at Guantanamo on Obama’s inauguration day. The Times’s data is available online in its “Guantanamo Docket” – an online repository of declassified Guantanamo documents and other information. In all likelihood, the Times’ list does not precisely match the detainees reviewed by the task force. But it is the best available list as the government does not publish a definitive list of detainees held at Guantanamo – and it is certainly a very close match.   

JTF-GTMO determined that 179 of the 239 detainees (75 percent) were “high” security risks to the U.S. and its allies. JTF-GTMO also recommended that 173 of these detainees (72 percent) be retained in the Department of Defense’s custody.

The leaked JTF-GTMO documents do not contain a recommendation for an additional 9 detainees in our study. But in 8 of these 9 instances, JTF-GTMO identified the detainee as a “high” risk, making it likely that JTF-GTMO recommended these 8 detainees for continued detention. If we add these 8 detainees to the 173 detainees JTF-GTMO recommended for continued detention, then JTF-GTMO likely recommended a total of 181 detainees (76 percent) held at Guantanamo on Obama’s first day in office be retained in DoD custody – and not transferred.

In sum, whereas Olsen’s task force approved roughly 2 out of every 3 (65 percent) Guantanamo detainees for transfer, JTF-GTMO recommended that approximately 1 out of every 4 (25 percent) be transferred. The task force approved only 35 percent of the detainees for indefinite detention or prosecution, whereas JTF-GTMO recommended that roughly 75 percent be retained in DoD custody.

Guantanamo transfers are not risk free      

To his credit, Olsen has been more candid than most when it comes to the risks involved in transferring Guantanamo detainees. When the U.S. government transfers a detainee, it does not mean that he has been deemed innocent or risk-free. Olsen explained the risks involved during an interview with BBC News. “No decision about any of these detainees is without some risk,” Olsen said. “We need to be clear about the fact that we're making predicted judgments at some level about whether somebody is going to pose a risk to us in the future if they are released.”

The task force’s final report underscores this point. “It is important to emphasize that a decision to approve a detainee for transfer does not reflect a decision that the detainee poses no threat or no risk of recidivism,” the task force noted. “Rather, the decision reflects the best predictive judgment of senior government officials, based on the available information, that any threat posed by the detainee can be sufficiently mitigated through feasible and appropriate security measures in the receiving country.”

In other words, the U.S. government is relying on foreign governments to mitigate the risks of transferred detainees. The problem is that the more we’ve learned over time, the clearer it has become that foreign governments are frequently unable or unwilling to mitigate these risks.

The Bush administration itself transferred a large number of “high” risk detainees, including many of the Saudis held at Guantanamo. JTF-GTMO recommended that a large number of the detainees transferred by the Bush administration be retained in DoD custody as well. An increasing number of these transferred detainees have returned to the terror network, according to the Obama administration’s own estimates.

The bottom line is that the transfer of Guantanamo detainees entails, in many cases, “high” risks. The Guantanamo task force set up by President Obama was willing to accept far more of these risks than JTF-GTMO. It was also willing to accept more risk than the Bush administration with respect to the detainees remaining at Guantanamo in late January 2009. (The task force’s final report notes that only 59 of the 240 detainees, or 25 percent, “were approved for transfer or release by the prior administration but remained at Guantanamo by the time the Executive Order was issued.” Compare this to the 65 percent approved for transfer by the task force.)

It is clear that the Guantanamo Review Task Force, headed by Matthew Olsen, approved a large number of “high” risk transfers. The senators presiding over Olsen’s confirmation hearing may want to ask: Why?

Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.