Tuesday, March 7, 2017

Trump Tweets and Guantanamo Recidivism

I don't want to turn this blog into yet another fact-checking site, but the following tweet by President Trump struck me as a "teachable moment" on an important topic:

Is this true?  Not really. The source of this tweet is a report by the Office of the Director of National Intelligence  that was released yesterday.  It provides the following chart:

Even a cursory review of the chart shows that Trump's tweet is false.  Of the 122 released detainees "confirmed of reengaging", the vast majority--113--were released during the Bush Administration and NOT by President Obama.  This is not  a small mistake, by the way--it is Huge.  Sad.

I think the real story here is the large drop in recidivism after January 2009--from 17.6% to 5.6%.  This is no accident.  The Obama Administration and Congress together created a far more rigorous process for reviewing whether Guantanamo detainees still presented a threat to our national security.  A Periodic Review Board, made of of senior officials from every national security agency now carefully reviews each detainee.  Once they agree that the detainee is releasable, both the State Department and the Defense Department work with the country where the detainee will go to ensure safeguards are in place.  Finally, the Secretary of Defense must personally determine that the safeguards are sufficient to ensure no recidivism.

This process was actually put in place in 2011, and it would interesting to see if the recidivism post-2011 dropped even further.  Sadly, ODNI did not do this analysis.

Steve Vladeck of the University of Texas Law School has a very good post explaining why even these ODNI numbers inflate actual recidivism:
In the above-referenced report, ODNI counted a detainee as engaging in recidivism whenever there was “A preponderance of information which identifies a specific former GTMO detainee as directly involved in terrorist or insurgent activities.” And ODNI’s basis for suspicions involve “plausible but unverified or single-source reporting indicating a specific former GTMO detainee is directly involved in terrorist or insurgent activities.” There are lots of problems with this definition, but here are three: First, it assumes, contra what we now know, that every Guantánamo detainee had previously been engaged in terrorist or insurgent activities (hence the “re” in recidivism). Second, it treats as “recidivism” involvement in amorphous “activities,” without any necessary connection to combat or battlefield activities (or, frankly, the United States)–such that one can be “confirmed of reengaging” through information that places them in the wrong place at the wrong time, without any clearer connection to hostilities or any evidence whatsoever that they “returned to the battlefield,” or did so in the context of the conflict between the United States and al Qaeda and its affiliates. Third, there’s no way to test these numbers, since they’re based upon classified intelligence and “a preponderance of information.” In other words, an unsubstantiated intelligence report that places a former detainee in the wrong part of Yemen at the wrong time can, by itself, apparently be the basis for a determination that the detainee is “confirmed of reengaging.” Intelligence reports have value, but we ought to be careful not to place too much weight on them when reaching broader conclusions about sensitive topics like recidivism.
Read it all here.

By way of full disclosure, I represent one of the Guantanamo detainees now in the Periodic Review Process.

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