How many terrorists are really left at Guantanamo, anyway?

The law, lawyers, and the court.
Jan. 22 2009 6:43 PM

Bad Men

How many terrorists are really left at Guantanamo, anyway?

Guantanamo Bay. Click image to expand.
Guantanamo

This morning, President Barack Obama signed an executive order that will close down the prison camp at Guantanamo Bay, Cuba, within the year. He explained that he was "following through not just on a commitment I made during the campaign but an understanding that dates back to our Founding Fathers, that we are willing to observe core standards of conduct—not just when it's easy but also when it's hard."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Everyone agrees that the order shuttering the camp is the easy part; figuring out what to do with the 245 detainees there is far tougher. Amid all the hooting and hollering you'll be hearing from around the world today, hard questions linger about how many of the detainees left at the camp are the "worst of the worst" (in the parlance of  former Secretary of Defense Donald Rumsfeld) and how many simply can't be returned to sender. Are most of the detainees terrorist masterminds or just luckless wanderers? If the former is true, Sen. Sam Brownback, R-Kan., is right to be terrified that they will all be dropped off in his back yard at Leavenworth.  If the latter is true, the Center for Constitutional Rights is correct in suggesting that closing the camp isn't nearly as hard as it's been made out to be. This is not a moral or political or existential question. It's an empirical one, and presumably this matter can be resolved by the "prompt and thorough" review mandated by the president's executive order.

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One thing that will not help anyone, going forward, is the kind of hyperbole we've seen from both sides, suggesting that the whole camp is teeming with assassins or choirboys. So how many truly bad guys remain at Guantanamo? Here's a start to sorting that out.

For starters, let's put to rest once and for all the cockamamie numbers about former Guantanamo detainees who have ostensibly "returned to the battlefield" after being released from the camp. This is one of those numbers that's thrown around almost drunkenly by those in favor of keeping Guantanamo Bay in operation. Justice Antonin Scalia, writing in dissent in Boumedienne v. Bush, asserted, "At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield." He cited a year-old, widely debunked report for that statistic. Last week at Eric Holder's confirmation hearings, it was Sen. John Cornyn, R.-Texas,  who upped the count to 61 soldiers who had rejoined the battlefield since being let out of Gitmo.

Sixty-one is the most recent statistic from the Bush Defense Department, which coughed up this hairball at a Jan. 13, 2009, press conference. While the DoD spokeswoman would not at the time clarify how that statistic had jumped from the previous number of 37, elaborate on the identities of these 61 men, explain where they had been identified as battlefield returnees, or even indicate how many were still alive, she was confident that "there clearly are people who are being held at Guantanamo who are still bent on doing harm to America, Americans, and our allies. … So there will have to be some solution for the likes of them."

According to a new study by Mark Denbeaux and his team at Seton Hall University School of Law, this was the Bush administration's 43rd  attempt to quantify the number of detainees who have rejoined the battle. The previous 42 were no more impressive. The Seton Hall study shows that the administration's prior recidivist statistics do not even trend consistently upward—a 2007 DoD report downgraded the prior estimate of recidivists from 30 to five. The Defense Department has also been known to name as recidivists several individuals who have at no time been held at Guantanamo. Moreover, the Denbeaux study shows that the Defense Department defines speaking to reporters or publishing op-eds critical of Guantanamo as "returning to the fight." The point here is not that the data kept on the Gitmo detainees are all crap. The point is that we need to get past the tendency to cite statistical "facts" about the future dangerousness of these prisoners (and to use seemingly every available digit in the history of numbers in doing so) based on highly suspect Bush administration records. 

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