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McCain, Scalia and Yoo Peddle Discredited "Gitmo 30" Sound Bite
In a Wall Street Journal op-ed today, Bush administration torture architect John Yoo thundered against the Supreme Court's restoration of habeas corpus rights for Guantanamo detainees. Branding the Boumediene decision "judicial imperialism of the highest order," Yoo like Justice Scalia and John McCain raised the specter of those 30 released Gitmo terrorists as a warning of the carnage the Court's ruling is certain to produce. Alas, as with so much else passing over John Yoo's lips, it simply isn't true.
As I detailed yesterday, the figure of 30 former Guantanamo detainees "returned to the fight" has been debunked by recent investigations from the McClatchy papers and Seton Hall University professor Mark Denbeaux. But that hasn't stopped the exaggerated number of Gitmo terror recidivists from becoming a standard Republican talking point.
The sound bite dates back to the summer of 2007, when the Pentagon released its own study to counter an earlier analysis by Denbeaux which questioned the intelligence value of Al Qaeda and Taliban personnel held by the U.S. The New York Times said "it paints a chilling portrait of the detainees," and quoted Pentagon spokesman Jeffrey Gorden on one of its key findings:
"Our reports indicate that at least 30 former Guantanamo detainees have taken part in anti-coalition militant activities after leaving U.S. detention," he said. "Some have been killed in combat in Afghanistan and Pakistan."
That figure quickly became a staple among Republicans in the debate over Guantanamo Bay and the status of the detainees in the wake of the Court's Hamdan decision and the subsequent passage of the Military Commissions Act. With the Senate Judiciary Committee now in Democratic hands, GOP Senators Kyl, Sessions, Graham, Cornyn, and Coburn prominently featured the 30 released detainees in their minority report arguing against the Habeas Corpus Restoration Act of 2007:
"At least 30 detainees who have been released from the Guantanamo Bay detention facility have since returned to waging war against the United States and its allies. A dozen released detainees have been killed in battle by U.S. forces, while others have been recaptured."
It is worth noting, as the Committee's majority report did, that all detainees released from Guantanamo Bay were freed not by civilian courts, but by the military's own tribunals and commissions:
"Indeed, those Guantanamo detainees who have been released since 9/11--discussed at length by critics of this legislation--have been freed by the military following its own process, not by federal judges on habeas review."
In his Boumediene dissent, Justice Scalia regurgitated the same talking point, citing the news accounts contained in the minority report of Kyl et al:
"In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield. See S. Rep. No. 110-90, pt. 7, p. 13 (2007) (Minority Views of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn) (hereinafter Minority Report)...
...These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection."
In his tirade today, John Yoo in turn approvingly cited Scalia's Boumediene dissent as proof of the coming bloodbath the Court's majority has enabled:
"Just as there is always the chance of a mistaken detention, there is also the probability that we will release the wrong man. As Justice Antonin Scalia's dissenting opinion notes, at least 30 detainees released from Guantanamo Bay -- with the military, not the courts, making the call -- have returned to Afghanistan and Iraq battlefields."
And in his own blistering attack on the Court's ruling on Friday, John McCain picked up the torch, virtually ensuring that the Gitmo 30 will be a bludgeon used against Barack Obama through November:
"30 of the people who have already been released from Guantanamo Bay have already tried to attack America again."
Of course, there seems to be one minor problem with the tale told by Mssrs Kyl, McCain, Scalia and Yoo. Like much else that passes for Bush administration propaganda, it's a wild exaggeration at best.
But during a December 11, 2007 appearance before the Senate Judiciary Committee, Denbeaux presented an analysis of the same data to reach a starkly different conclusion. The Seton Hall professor and detainee lawyer contended:
Just as the Government's claims that the Guantanamo detainees "were picked up on the battlefield, fighting American forces, trying to kill American forces," do not comport with the Department of Defense's own data, neither do its claims that former detainees have "returned to the fight." The Department of Defense has publicly insisted that at least thirty (30) former Guantanamo detainees have "returned" to the battlefield, where they have been re-captured or killed. To date, however, the Department has described at most fifteen (15) possible recidivists, and has identified only seven (7) of these individuals by name. More strikingly, data provided by the Department of Defense reveals that:
- at least eight (8) of the fifteen (15) individuals identified alleged by the Government to have "returned to the fight" are accused of nothing more than speaking critically of the Government's detention policies;
- ten (10) of the individuals have neither been re-captured nor killed by anyone;
- and of the five (5) individuals who are alleged to have been re-captured or killed, two (2) of the individuals' names do not appear on the list of individuals who have at any time been detained at Guantanamo, and the remaining three (3) include one (1) individual who was killed in an apartment complex in Russia by local authorities and one (1) who is not listed among former Guantanamo detainees but who, after his death, has been alleged to have been detained under a different name.
No doubt, Denbeaux's role as a defense attorney for detainees held by the United States in Cuba means his analysis will (and should) draw extra scrutiny. But in its devastating three-part probe into the American detainee system, McClatchy largely confirmed Denbeaux's assessment:
A study published by a professor at the Seton Hall School of Law found that 45 percent of 516 Guantanamo detainees examined had committed hostile acts against the United States or its allies, and that only 8 percent of them had been al Qaida fighters. The study drew on unclassified Department of Defense transcripts and documents from military tribunals at Guantanamo...
...So who got it right?
It's not possible to say definitively. However, a McClatchy investigation came to conclusions similar to the Seton Hall study, and West Point's statistical breakdown, under close examination, helps explain how Guantanamo's cellblocks became filled with innocents and low-level Taliban grunts.
(That is the case, as the McClatchy probe details and Glenn Greenwald explains, because the majority of detainees were not (as Yoo claims) "captured fighting against the U.S," but instead turned in by informants seeking to reap bounties paid the United States.)
There is no question that some number of those held at Guantanamo Bay are indeed the "worst of the worst" (as the trial of Khalid Sheikh Muhammed and associates makes clear). But the Pentagon's 2007 study was a political document (as the Times reported, "Colonel Felter acknowledged, however, that military officials had indicated they wanted to contest the Seton Hall report"). And no doubt, we haven't heard the last of those 30 terror recidivists from John Yoo, John McCain and friends.
UPDATE 1: In an interview with Britain's Sky News, President Bush suggested where the debate over Guantanamo detainees is headed. Asked if Abu Ghraib and Gitmo can be said to represent the "complete opposite of freedom," Bush replied, "Of course, if you want to slander America."
UPDATE 2: Denbeaux and his Seton Hall colleagues on June 17th issued a new report in response to Scalia's Boumediene dissent. Pointing out that the DoD itself abandoned the "30 released detainees" claim, Denbeaix et al term the Scalia/McCain/Yoo talking point an "urban legend."
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