Guantanamo Bay: The Remaining Detainees

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Chairman DeSantis, Ranking Member Lynch, and other members of the committee, thank you for inviting me to testify today. I have been writing about Guantanamo and the detainees held there for more than a decade and I visited the detention facility in 2008. I have reviewed most, if not almost all, of the publicly available files created by the U.S. government on the individual detainees, as well as the habeas decisions issued by the courts.  This material constitutes thousands of pages of source files, which I have summarized in databases containing dozens of variables on most of the men who have been detained. The Guantanamo detainees are a regular part of my coverage at The Long War Journal, which was among the first publications to report that former detainee Ibrahim al Qosi, who is a senior al Qaeda figure, had rejoined the fight. 

The key points in my testimony today are as follows:

1. Guantanamo has always posed risk management problems for the U.S. government. Early on, U.S. officials decided to divide the detainee population into categories based on risk. This process was incredibly difficult as it must take into account numerous factors, including sometimes murky, contradictory or uncorroborated intelligence. This process hasn’t been perfect, as some detainees were misidentified as low threats, transferred or released, and then rejoined the jihad in a significant capacity. In addition, in some cases detainees were misidentified as being more senior in jihadist organizations than they really were.

2. Even so, various bodies in the U.S. government have collected significant intelligence on most of the detainees. And the detainees’ dossiers have been reviewed multiple times by U.S. officials.

3. In January 2010, President Obama’s Guantanamo Review Task Force finished its work on the detainee population. It should be noted that the task force did not recommend any of the 240 detainees it evaluated be outright released.

4. Instead, the task force approved for “transfer,” or eventual transfer after “conditional detention,” 156 of the 240 detainees it reviewed — that is, nearly two-thirds of the detainee population.   The task force made it clear that the term “transfer” was “used to mean release from confinement subject to appropriate security measures.” The term “release” was “used to mean release from confinement without the need for continuing security measures in the receiving country.”  Again, no detainees were approved for outright release. In other words, the task force determined that there was at least some risk involved in the detainee transfers.

5. As of May 19, 2016, 80 detainees remain at Guantanamo. Only 15 of them were approved for transfer by President Obama’s task force. The majority of the detainees, 65 in all, were either referred for prosecution or slated for continued detention under the law of war (2001 Authorization for Use of Military Force). Therefore, the detainee population today is mostly comprised of detainees who President Obama’s own task force deemed too dangerous to transfer.

6. The Obama administration has established a Periodic Review Board (PRB) process to evaluate the cases of the 65 detainees previously deemed too dangerous to transfer. The PRB has issued 28 decisions thus far. The PRB has approved for transfer – again, subject to “appropriate security measures” – 21 of the 28 detainees. In some cases, detainees were approved for transfer by the PRB just months after the PRB itself ruled that continued detention remained necessary to mitigate the threat posed by the detainee. In the remaining seven instances, the PRB concluded that detention remained necessary.

7. In its most recent assessment, the Office of the Director of National Intelligence said that 204 former detainees were “confirmed” or “suspected” of reengaging in jihadist activities. The overwhelming majority of these recidivists were transferred or released by the Bush administration. But the number of recidivists transferred by the Obama administration has begun to climb as well, and it is likely only a matter of time until more of them are considered recidivists.

8. In sum, the U.S. government has taken on more and more risk in approving detainee transfers. The government seeks to mitigate this risk and some of its practices are likely somewhat effective (such as transferring detainees to countries that are not currently embroiled in jihadist insurgencies). Still, history shows that it is often difficult for the U.S. government to ensure that “appropriate security measures” are enacted by host countries.