Opening Argument February 2006

Falsehoods About Guantanamo

The administration's unspoken logic regarding enemy combatants appears to be: Better to ruin the lives of 10 innocent men than to let one who might be a terrorist go free.

"These are people picked up off the battlefield in Afghanistan. They weren't wearing uniforms ... but they were there to kill." —President Bush, June 20, 2005

"These detainees are dangerous enemy combatants....They were picked up on the battlefield, fighting American forces, trying to kill American forces." —White House press secretary Scott McClellan, June 21, 2005

"The people that are there are people we picked up on the battlefield, primarily in Afghanistan. They're terrorists. They're bomb makers. They're facilitators of terror. They're members of Al Qaeda and the Taliban....We've let go those that we've deemed not to be a continuing threat. But the 520-some that are there now are serious, deadly threats to the United States." —Vice President Cheney, June 23, 2005

"These are people, all of whom were captured on a battlefield. They're terrorists, trainers, bomb makers, recruiters, financiers, [Osama bin Laden's] bodyguards, would-be suicide bombers, probably the 20th 9/11 hijacker." —Defense Secretary Donald Rumsfeld, June 27, 2005

These quotes are representative of countless assertions by administration officials over the past four years that all—or the vast majority—of the prisoners at Guantanamo Bay are Qaeda terrorists or Taliban fighters captured on "the battlefield."

The assertions have been false. And those quoted above came long after the evidence of their falsity should have been manifest to Bush, Cheney, Rumsfeld, and their subordinates.

This is not to deny that many of the 500-odd men now held at Guantanamo and some of the 256 others already released (including 76 to the custody of their home countries) were captured on Afghan battlefields or were terrorists, or both. Nor is it to deny the difficulty of knowing with confidence which detainees could safely be released. Indeed, several released detainees have ended up rejoining Taliban forces in Afghanistan.

But reporter Corine Hegland's exhaustively researched cover story in this issue—studded with probative details and human stories that every serious student of the war against terror should read—provides powerful evidence confirming what many of us have suspected for years:

  • A high percentage, perhaps the majority, of the 500-odd men now held at Guantanamo were not captured on any battlefield, let alone on "the battlefield in Afghanistan" (as Bush asserted) while "trying to kill American forces" (as McClellan claimed).
  • Fewer than 20 percent of the Guantanamo detainees, the best available evidence suggests, have ever been Qaeda members.
  • Many scores, and perhaps hundreds, of the detainees were not even Taliban foot soldiers, let alone Qaeda terrorists. They were innocent, wrongly seized noncombatants with no intention of joining the Qaeda campaign to murder Americans.
  • The majority were not captured by U.S. forces but rather handed over by reward-seeking Pakistanis and Afghan warlords and by villagers of highly doubtful reliability.
  • These locals had strong incentives to tar as terrorists any and all Arabs they could get their hands on as the Arabs fled war-torn Afghanistan in late 2001 and 2002—including noncombatant teachers and humanitarian workers. And the Bush administration has apparently made very little effort to corroborate the plausible claims of innocence detailed by many of the men who were handed over.

    The administration has also disclosed very little about who the Guantanamo detainees are, excepting 1) redacted transcripts of 314 detainees' hearings before Guantanamo's nonjudicial "Combatant Status Review Tribunals" or CSRTs; and 2) somewhat more-detailed responses to the federal court petitions filed by lawyers for 132 of these 314 men.

    My estimates above are based largely on extrapolation from Hegland's analysis of these 132 federal court files. They appear to be reasonably representative of the men still at Guantanamo; certainly, the government has given no indication that its evidence is any weaker in these 132 cases than in the other 370 or so.

    It is, therefore, quite remarkable to learn (from Hegland) that well over half (75) of the 132 are not even accused of fighting the United States or its allies on any battlefield in post-9/11 Afghanistan or anywhere else.

    Indeed, only 35 percent of them (more precisely, of the 115 whose court files specify the locus of capture) were seized in Afghanistan; 55 percent were picked up by Pakistanis in Pakistan.

    The government's case for continuing to detain most of these 75 nonbattlefield captives is that other people of doubtful reliability have said they were associated with the Taliban or Al Qaeda, often in very indirect ways.

    Presented by

    Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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