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The Meaning of 'Soaring'

6:30 AM, Dec 8, 2010 • By THOMAS JOSCELYN
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Stein’s source argues that “the recidivism rate for detainees transferred under the new, more comprehensive system - The Guantanamo Review Task Force - has been much lower than for detainees released under the prior system.” The administration says this because just 5 of the 66 detainees it has released are confirmed or suspected recidivists.

This argument is not sustainable for at least two reasons.

First, we don’t know what the recidivism rate will be for the 66 detainees transferred by the Obama administration. As the DNI’s new report notes, there is “about 2.5 years between leaving GTMO and the first identified reengagement reports” for recidivists. None of the 66 detainees released by the Obama administration has been free for 2.5 years yet. The 5 detainees transferred by the Obama administration who are on the DNI’s recidivist list are simply ahead of the curve, so to speak. (One of them was a known recidivist within just a few months. This may have been a new record.)

Obama administration officials should have learned by this point to be more careful with this argument. In February, John Brennan argued that none of the “confirmed” or “suspected” recidivists were transferred by the Obama administration. Today, there are 5 Obama transferees on the list. There will surely be more in the not so distant future.

Second, most of the detainees the Guantanamo Review Task Force approved for transfer (including those held in “conditional” detention) have not been transferred yet. 156 were approved for transfer and just 66 have been thus far. That leaves 90 detainees the Obama administration apparently intends to transfer if it sticks to the task force’s recommendations. Those 90 detainees haven’t had a chance to become recidivists yet because they are currently detained in Cuba.

In short, there is no reason to believe that the recidivism rate for detainees transferred by Obama will be any less that the rate for detainees transferred by Bush.

Towards the end of his post, Stein highlights an argument that I’ve also heard from Obama administration officials. “In many cases,” Stein writes, “detainees were ordered released under habeas petitions – their cases were too messed up to try, and their continued detention was to tricky to justify.”

But this ignores the fact that the Obama administration has been highly successful in appealing some of these district court decisions. Instead of acquiescing to district judges’ opinions, which are often specious and factually erroneous, the Obama administration should appeal more of their rulings. The bottom line is that many of the habeas decisions the Obama administration declines to appeal suffer from the same deficiencies as those overturned by the D.C. Circuit Court.

Again, the administration can’t close Gitmo without transferring many of its remaining detainees to other countries. Those transfers all carry with them some risk. More detainees (including some transferred by the Obama administration itself) will return to terrorism in the coming months.

That is why the DNI’s new report makes closing Gitmo all the more difficult. With the passage of time, it is becoming more obvious just how much risk is involved in transferring detainees.

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

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