How Has Obama Altered America's Approach To Gitmo Transfers?

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.  

Guantanamo Bay.

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.”

Olsen replied: 

“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.” 

Olsen added:

“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.