My suggestion that Matthew Olsen answer questions about his work on the Guantanamo Review Task Force during his Senate confirmation hearing has clearly struck a nerve at the Lawfare Blog. There are two posts replying to my original piece – one by Benjamin Wittes and another by Robert Chesney.

Neither author challenges my central finding: the task force Olsen headed approved a large number of “high” risk detainees, as deemed by Joint Task Force Guantanamo (JTF-GTMO), for transfer. Wittes concedes: “Joscelyn is, to be sure, not wrong that the task force recommended people for transfer who previous reviews had considered ‘high risk.’” Moreover, as I wrote previously, JTF-GTMO recommended that about 75 percent of the detainees held in late January 2009 be retained in the Department of Defense’s custody, whereas the task force recommended that 65 percent be transferred.

Nothing in either Wittes’s or Chesney’s posts changes this reporting. Instead, both authors offer unconvincing reasons why no one should be concerned about this state of affairs. They are not the least bit curious as to why the task force came to the conclusions it did, or why these conclusions differed by a wide margin from JTF-GTMO’s recommendations. Wittes says he was "worried" that anyone would even dare raise this issue.

Much of Wittes’s post is devoted to congratulating himself for recommending that a task force be set up in the first place. Wittes writes, “I have a small personal stake in this brewing dispute. I called for a task force very much like the one Olsen ended up heading even before Obama was elected.” Later he adds, “And I stand by the administration’s decision to go through every detainee…and make its own determination regarding whom it did and whom it did not need to continue detaining.”

That’s great. It is also entirely irrelevant to my post as I never questioned President Obama’s decision to establish a new task force. Obama had every right to do so. I am, however, questioning the task force’s transfer decisions.

Wittes claims there is no reason to worry, however. The task force did its work “with open eyes, having reevaluated old evidence, looked at new evidence, and assessed certain resettlement opportunities that were not available to the prior administration.” Wittes adds: “To put it simply, the Guantanamo task force did a really good job on an important project. It generated options for dealing with individuals and a certain analytical clarity regarding the status which different detainees should occupy in the future.”

How, exactly, did Wittes come to these conclusions? Was he a member of the task force with access to its work? (Perhaps he was, but I don’t see any mention of it in his post.) Most importantly, does Wittes know what criteria the task force chose to employ (or was given by the Obama administration) when determining which detainees to transfer?

Towards the end of his post, Wittes has a long paragraph packed with various claims that I will break down and respond to here.

Wittes writes: “And importantly, the Obama administration has not, in fact, transferred any significant number of people from Guantanamo that the prior administration would not also have transferred had it had the chance. The difference in practice between the two administrations is largely one of opportunity, not attitude.”

First, the Obama administration’s detainee transfers came to a grinding halt for a number of national security-related and political reasons beyond the administration’s control. So, most of the detainees the administration intended to transfer, per the task force’s approval, have not in fact been transferred. Still, the Obama administration has already transferred dozens of “high” risk detainees and it is doubtful that Wittes knows which of these detainees the Bush administration would have transferred and which ones it would not have.

The task force clearly approved a large number of detainees for transfer who were not approved for transfer by the Bush administration. The Guantanamo Review Task Force’s own final report says that 59 of the 240 detainees it reviewed “were approved for transfer or release by the prior administration but remained at Guantanamo by the time the Executive Order was issued.” That is just 25 percent of the detainees remaining at Gitmo in late January 2009. Compare this to the 156 detainees – or 65 percent – approved for transfer by the task force.

Does Wittes think that the Bush administration would have transferred the other 97 detainees (40 percent) approved for transfer by the task force, or at least a “significant number” of them? If so, what leads him to think this? The fact of the matter is that they were not approved for transfer by the Bush administration as of January 2009. Within one year, they were approved for transfer by Obama’s task force.

This is not intended to be a defense of the Bush administration’s handling of detainee transfers – far from it.

As I’ve reported, the Bush administration did transfer a large number of “high” risk detainees who JTF-GTMO recommended for continued detention in DoD custody. I think this is what Wittes was trying to get at – that the Bush administration itself made a lot of risky transfers and probably would have engaged in more. Fair enough – and I’ve been critical of those transfers.

However, Wittes does not draw a logical conclusion from this observation (assuming it is the one he intended). The consequences of the Bush administration’s transfers have been disastrous. For example, al Qaeda in the Arabian Peninsula (AQAP) benefited greatly from the Bush administration’s “high” risk repatriations of Saudis. The Taliban’s Quetta Shura is also populated by more than one former Gitmo detainee, including the most dangerous Taliban commander on the planet – Mullah Zakir. (Full disclosure: I recently spoke at length about Zakir during a briefing held by the House Armed Services Committee.)

Does this mean, then, that if the Bush administration’s transfer policies were seriously flawed (and they were), then the Obama administration gets a pass if it also makes “high” risk transfer decisions? That is gist of Wittes’ argument. It is illogical. One seriously flawed transfer policy does not justify another.

Wittes adds: “What’s more, the additional risk the task force was willing to assume largely involved Yemenis and was in many cases contingent on conditions improving in Yemen–which they have not done. Almost none of this additional risk has been realized in practice, for reasons Bobby, Matthew Waxman and I laid out in this briefing paper on Yemeni transfers.”

So, Wittes concedes that the task force was willing to assume “additional risk.” This was the whole point of my original post – to ask why this is the case. It is a perfectly reasonable question.

The Yemenis were a big part of the “additional risk” the task force was willing to assume. But the Yemenis are not the whole story. By my calculation, based on the task force’s final report, there were 51 Yemenis not approved for transfer by the Bush administration but who were approved by the task force for transfer or conditional detention (which allowed for transfers to other countries). In addition, there were 46 detainees of other nationalities the task force approved for transfer but who had not been previously approved for transfer.

In other words, the task force was willing to accept more risk across the entire Gitmo population, not just the Yemenis.

Finally, Chesney’s post has almost nothing to do with the issues at hand. For Chesney, this is apparently personal. Chesney argues that anyone who “attacks” Olsen must also be willing to “condemn” the officials “who approved the release of a much larger group of GTMO detainees between 2002 and 2008,” as well as the military officials in Iraq and Afghanistan who let thousands of detainees go free.

I have not “attacked” or “condemned” Olsen, or any other official. Ironically enough, as discussed above, I have repeatedly questioned the first item on Chesney’s list – Gitmo transfer policy from 2002 to 2008. And I will continue to do so in the future. (Chesney’s mention of detainee releases in Iraq and Afghanistan, however, conflates all sorts of issues that have no bearing on the matter here.)

For the record, Olsen may very well be a great candidate for the NCTC’s director position. I have no idea. I’ve never met the man and know nothing about the totality of his work inside government. Careful readers will note that I did not even object to his nomination.

Instead, I’ve simply asked a question that neither Wittes nor Chesney can answer and suggested that Senators ask the same. How did the Guantanamo Review Task Force, headed by Olsen, decide to approve so many “high” risk detainees for transfer?

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

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