Via Sam Stein at the Huffington Post (“Obama Administration Pushes Back On Report That Gitmo Recidivism Has ‘Soared’”), an anonymous Obama administration official has offered a reply (of sorts) to my piece on the DNI’s latest assessment of Guantanamo recidivism. It is odd that anyone in the Obama administration thought it was necessary to reply in the first place because I hardly flogged the administration for the increasing recidivism rate.
I made it clear that the “overwhelming majority” of confirmed and suspected recidivists on the DNI’s list – 145 of the 150 – were transferred during the Bush years. The news that 5 of the former detainees on the DNI’s recidivist list were transferred by the Obama administration is actually somewhat downplayed in my piece.
Moreover, how can anyone dispute that the number of estimated recidivists has “soared”? It is a straightforward matter. The previous assessments concluded that there were 37 confirmed and suspected recidivists as of June 2008, 61 as of January 2009, 74 as of April 2009, and between 110 and 120 as of February 2010. There are now 150 confirmed and suspected recidivists.
That’s four times as many as two and a half years ago, more than double the April 2009 estimate, and about 30 percent greater than the estimate in February 2010.
That is “soaring,” “skyrocketing,” or whatever other adjective you want to use to describe an assessment that has quadrupled in just two and a half years.
So why is the Obama administration so concerned about the DNI’s new report?
The real issue, in my view, has to do with the president’s decision to close Gitmo and the administration’s detainee transfer policies. The Obama administration cannot close Guantanamo without transferring a large number of detainees to other countries. This is why Stein’s source emphasizes that the Obama administration’s Guantanamo Review Task Force implemented a “new, more comprehensive system” for determining what is to be done with the detainees, including transferring them.
But how different is the result of this supposedly “new, more comprehensive system” with respect to detainee transfer decisions? The overall result is not very different at all, even if there are some important differences with respect to individual detainees.
Look at it this way. About 779 detainees have been held at Gitmo and 532 were transferred by the Bush administration.
That’s a transfer rate of 68 percent.
President Obama’s Guantanamo Review Task Force reviewed the case files on 240 detainees. The task force determined that “126 detainees were approved for transfer” and 30 Yemeni detainees were to be held in “conditional” detention. The 30 Yemenis can be transferred to other countries or Yemen, if the security situation there improves (though that’s not going to happen anytime soon). So, of the 240 detainees evaluated by Obama’s task force, a total of 156 were approved for outright or conditional transfer.
That’s a proposed transfer rate of 65 percent.
In other words, the Obama administration intends to transfer about the same percentage of detainees that the Bush administration did. But there’s one important difference. Some, perhaps many, of the detainees the Obama administration seeks to transfer were not, in fact, transferred by the Bush administration. That is, the Obama administration inherited a detainee population that the Bush administration found to be especially problematic, even by Gitmo’s standards. (In some cases this has to do with the detainees’ dossiers; in other cases, as with the Yemenis, their home countries are a concern.) Under such circumstances, you might expect that the Obama administration would approve a smaller share of the remaining detainees for transfer, not essentially the same percentage.
Simply put, Obama’s task force approved for transfer nearly two-thirds of the detainees it evaluated. It is difficult to argue that this is a vast improvement over the Bush administration’s flawed approach to transfers. It also would have been hard for the task force to approve even more detainees for transfer.
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.