Gitmo Detainees: To Release Or Not To Release

This week, something unprecedented happened. Our Secretary of Defense actually agreed with the nonprofit that's been leading the effort to ensure all Guantanamo detainees receive proper legal representation. Agreed on an issue, I should clarify. No, Robert Gates didn't say that a court process is preferable to military detention, but he told the Senate Arms Services Committee that the release of Guantanamo detainees doesn't pose any critical security threat.

While Gates testified on Tuesday that only around 4 or 5% of detainees return to the battlefield, Shayana Kadidal, Senior Managing Attorney of the Guantánamo Global Justice Initiative at the Center for Constitutional Rights was telling me much the same thing. "The military's own records show that only 4% were captured on anything resembling the battlefield. The concept of return to the battlefield is a little disingenuous when people were never there to begin with," he said.

Last week's report that a released Guantánamo detainee -- Said Ali al-Shihri -- "resurfaced with Al Qaeda" to "become a Qaeda chief" raised a lot of eyebrows and left some stomachs in knots. I know even some liberals who were spooked by this news, which was featured in high-profile fashion on the front page of the New York Times. But the claims that released detainees are a threat to the United States are being disputed, and -compared to the prominent coverage of the "returning-to-the-battlefield" theory--this contrary message is being overlooked by the media.

This is where Ateqah Khaki, Advocacy Coordinator for ACLU's National Security Project, comes in. She fired off a blog titled "Pentagon Misinforms Public on Released Gitmo Detainees," referring readers to the media watchdog website of Media Matters. Khaki also points out the work of the Seton Hall Law School Center for Policy and Research, whose reports on Guantanamo have been cited numerous times by Congress. These same reports, writes Khaki, "rebut and debunk" the Department of Defense's allegation that detainees, once released, turn to terrorist activities.

The Center's director, Professor Mark Denbeaux, was on The Rachel Maddow Show just this week, slamming the DOD for its (shockingly) unreliable data. "They will put out a document with a list of names on it, many of which are people who were never in Guantanamo," Denbeaux charged. "They'll have two different detainees who allegedly returned to the battlefield having the same internal security number. That is, there's two different names, one detainee. And they're both being counted."

This very alarming disorganization was the topic of an article in Sunday's Washington Post, which quoted a former military prosecutor at Guantanamo, Darrel Vandeveld, as saying that evidence was "strewn throughout the prosecution offices in desk drawers, bookcases packed with vaguely-labeled plastic containers, or even simply piled on the the tops of desks." And "crucial physical evidence...had been tossed in a locker located at Guantanamo and promptly forgotten."

"If they really believed that the people there were that dangerous then surely they would have kept better files on them," says Kadidal. "The disorganization reflects their initial evaluation that most of the people were not of high interest. It's a demonstration of two things: first, the military shouldn't be running detention or interrogation facilities, and second, that the criminal justice model of prosecution is better than the military detention model of 'preventive detention' at preventing future crime."

Gerald Staberock, Director of the International Commission of Jurists' Global Security and Rule of Law Programme, agrees that a court process is the best way to combat terrorism. "In our experience of looking at counterterrorism policies around the world, the best way to prosecute terrorism suspects is through independent, ordinary courts with guarantees of due process," he told me. "As we learned in the hearing of the Eminent Jurists Panel on Terrorism and Human Rights in Northern Ireland, keeping detainees in detention without trial for many years is grossly counter-productive." Regarding the "returning-to-the-battlefield" notion, Staberock notes, "Detainees have been stigmatized as the 'worst of the worst' yet the majority of those released have returned to their countries to live a responsible life."

Kadidal goes a bit farther with the argument that the court system is most effective. He's still pushing the envelope, not resting easy even now that the Defense Secretary may have joined his camp. Certainly Kadidal maintains that released detainees pose no real security threat, but he suggests we revisit the case of Said Ali al-Shihri, the former detainee now thought to be a Qaeda chief. "If courts had been allowed to review the case, they may have come to a different conclusion about whether he would have been released," he challenges. "Maybe he would still be serving a sentence instead of being released."