On Wednesday, March 3, the Senate Armed Services Committee will be holding a closed hearing to “receive a briefing on policies, procedures, and practices relating to the transfer of detainees held at the Guantanamo Detention Facility.” The hearing presents an opportunity for senators to ask tough, but fair, questions about the Obama administration’s detainee transfer policies.
The senators can begin by dispensing with the “cleared for release” myth. When a detainee is transferred from Guantanamo, there are usually press accounts saying that he has been “cleared for release.” It is a deceptive phrase and one that has infected much of the reporting on Gitmo, including my own. The implication is that authorities have determined that the detainee is either: (a) innocent, or (b) no longer a threat whatsoever. (Some journalists and bloggers use the phrase in precisely this manner.)
But neither implication is true. Moreover, the authorities responsible for transferring detainees don’t even use the phrase “cleared for release.” Instead, detainees are “approved for transfer.” It may seem like a linguistic sleight of hand, but in fact there are profound differences in what these two phrases mean.
The senators have the opportunity to explore this theme with one of the witnesses scheduled to attend the hearing -- Matthew Olsen, the executive director of President Obama’s Guantanamo Detainee Review Task Force at the Department of Justice.
During an interview with a BBC reporter in January, Olsen was asked if the administration’s transfer decisions were based on a determination of “guilt or innocence.”
“It is more nuanced than that. What we are looking at is 'can this person be safely transferred out of the United States?'
“‘Can they be transferred to a country that will be able to implement adequate mitigation measures to address any threat the detainee may pose?’ It's a judgment on risk.”
“No decision about any of these detainees is without some risk. 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.”
Thus, the detainees the Obama administration has transferred, or will, all pose “some risk” and no one has deemed them to be innocent. This is particularly worrisome because the Obama administration has reportedly approved many, if not most, of the remaining detainees for transfer. (It should be noted that the Bush administration transferred many detainees who military and intelligence professionals identified as posing a terrorist threat. The best evidence for this is the climbing recidivist rate.)
This raises some natural questions.
First, how does the detainee task force determine the amount of risk that is acceptable to the administration? That is, since all detainees pose “some risk,” how does the task force determine where the cut off line is between, say, a detainee who poses risk but is worthy of transfer and a detainee who is risky but not worthy of transfer?
Second, how does the task force determine whether the host country is capable of implementing “adequate mitigation measures?”
Third, are there detainees who the Bush administration refused to transfer, but who have now been approved by Obama’s task force? Put differently, how have the standards for transfer approvals changed since January 2009? Do the task force’s threat assessments differ, with respect to any individual detainees, from those written during the Bush years? If so, what accounts for those differences?
Some concrete examples illustrate why these questions matter.
On December 19, the Obama administration transferred six Yemeni detainees to their home country. This was a controversial move, as the dangers posed by Yemen have long been known. Then, on Christmas Day, a terrorist trained by al Qaeda in the Arabian Peninsula (AQAP), which is headquartered in Yemen, tried to blow up a Detroit-bound airliner. In the aftermath of the attack, the Obama administration suspended all detainee transfers to Yemen.
But it shouldn’t have taken the Christmas Day attempt to change the Obama administration’s transfer policies. The country’s instability and the Yemeni government’s duplicity in the “war on terror” have long made it an unsuitable location for transferring detainees. That’s one of the chief reasons why the Bush administration didn’t transfer the Yemeni detainees there.
During his BBC interview, Olsen said that they were well aware of the problems with Yemen before Christmas Day but he would not comment on whether the December 19 transfers were a mistake. “I'm not going to say whether it was a mistake or not… I think that we are making the best possible judgments we can make based on a great deal of information,” Olsen said.
That suggests the administration is not confident in either Yemen’s ability to mitigate the risk posed by the detainees, or the soundness of transferring the detainees in question in the first place, or both.
The December 19 transfers look more questionable when one researches the detainees’ backgrounds. One of them, Ayman Batarfi, is known to be a longtime, committed jihadist. He is an al Qaeda doctor who fled to the Tora Bora Mountains in late 2001, where he met with Osama bin Laden. Batarfi also worked with “charities” that were really al Qaeda fronts. What’s worse: Batarfi’s own testimony and a series of memos produced at Guantanamo link him to al Qaeda’s anthrax program. (For more background on Batarfi, see here and here.)
Yet, Obama’s top counterterrorism adviser, John Brennan, claims there is no evidence tying Batarfi to al Qaeda’s anthrax program.
As I’ve argued previously, Brennan is clearly wrong.
Did the detainee task force reach the same conclusion as Brennan? If so, how did it make this determination when it clearly contradicts the assessments that had been made by intelligence officials at Guantanamo for years? And if the detainee task force reached the same conclusion as Gitmo intelligence officials (that Batarfi was involved in al Qaeda’s efforts to develop anthrax), then why was he transferred to the al Qaeda hotbed that is Yemen?
Perhaps most importantly, do American officials know what Batarfi and the other Yemenis transferred in December are up to currently?
There are many other detainee transfers worth exploring. Here’s one of them. Also in December, the Obama administration transferred Abdullahi Sudi Arale (also known as Ismail Mahmoud Muhammad) to Somaliland.
Somaliland is not even recognized as a real country, so it is not obvious how the Obama administration could trust officials there to mitigate the risks posed by Arale. And, according to the Bush administration officials who announced Arale’s transfer to Guantanamo in June 2007, Arale poses a real danger.
A DoD press release on June 6, 2007 explained:
“Abdullahi Sudi Arale is suspected of being a member of the Al Qaeda terrorist network in East Africa, serving as a courier between East Africa Al Qaeda (EAAQ) and Al Qaeda in Pakistan. Since his return from Pakistan to Somalia in September 2006, he has held a leadership role in the EAAQ-affiliated Somali Council of Islamic Courts (CIC).
There is significant information available indicating that Arale has been assisting various EAAQ-affiliated extremists in acquiring weapons and explosives, and has facilitated terrorist travel by providing false documents for AQ and EAAQ-affiliates and foreign fighters traveling into Somalia. Arale played a significant role in the re-emergence of the CIC in Mogadishu.”
The same day as the press release, a Pentagon spokesman called Arale a “high-value detainee.”
So, what changed between June 2007 and December 2009? How did Arale go from being a high-value detainee to being worthy of transfer to what is not even a real country?
The senators on the Armed Services Committee would be well-served to ask all of these questions – and more.
Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.