Published by The Lawfare Institute
in Cooperation With
Let me begin by eating crow.
If one is going to engage in a long-running campaign to embarrass a major newspaper by pointing out factual errors in its editorials, it pays to have one’s own factual ducks in a row. I screwed up and made a mistake in my correction column for the New York Times editorial page. Unlike that page, I try to make a practice of correcting my errors, so let me do so now.
The other day, I pointed out what I thought were a pair of mistakes in the New York Times's Shaker Aamer editorial. The had written, "Mr. Aamer has been cleared for release since 2007." I responded that Aamer was cleared for transfer, not release, and in 2009, not 2007. I hammered the point several times on Twitter:
No progress yet on the @nytopinion editorial page correcting its error yesterday. transfer does not equal release. 2007 does equal 2009.— Benjamin Wittes (@benjaminwittes) November 2, 2015
At least as to the date, I was dead wrong.
I was confused because back in 2007, there was this assessment of Shaker Aamer, which very emphatically did not urge his transfer, let alone his release. "JTF-GTMO recommends this detainee for Continued Detention," it reads. "Detainee is a member of al-Qaida tied to the European support network. Detainee is a close associate of Usama Bin Laden (UBL) and has connections to several other senior extremeist members. ... Detainee received advanced terrorist training, indicating his willingness to become a martyr, and served as the sub-commander of al-Qaida forces in Tora Bora." JTF-GTMO described him as "A HIGH risk, as he is likely to pose a threat to the US, its interests, and allies." Indeed, Aamer was specifically held onto when the Bush administration sent other British residents home.
That said, as this October 2008 document reflects, Aamer does appear to have been approved for transfer at least by that time--a fact also reflected in footnote 35 of this report from December 2008 by, among other people, yours truly.
My apologies for the error.
I do not, however, retract my other factual criticism of the New York Times editorial in question. There's a big difference between "cleared for release" and what is actually the operative concept here: "approved for transfer subject to appropriate security measures." That language comes from the 2009 Guantanamo Review Task Force Final Report. The phase "cleared for release" necessarily carries a certain implication of innocence. And there have been people at Guantanamo whom the Bush administration cleared for "release," in the sense of acknowledging that they were held as a consequence of government error and, in fact, posed no threat. There were also people who were "cleared" and ordered "released" by habeas courts because in the judgment of those courts, the evidence did not support the individuals' detentions.
"Approved for transfer" is something very different, and it's worth quoting at some length the task force's account of what it means:
It is important to emphasize that a decision to approve a detainee for transfer does not reflect a decision that the detainee poses no threat or no risk of recidivism. Rather, the decision reflects the best predictive judgment of senior government officials, based on the available information, that any threat posed by the detainee can be sufficiently mitigated through feasible and appropriate security measures in the receiving country. Indeed, all transfer decisions were made subject to the implementation of appropriate security measures in the receiving country, and extensive discussions are conducted with the receiving country about such security measures before any transfer is implemented. Some detainees were approved for transfer only to specific countries or under specific conditions, and a few were approved for transfer only to countries with pending prosecutions against the detainee (or an interest in pursuing a future prosecution). Each decision was made on a case-by-case basis, taking into account all of the information about the detainee and the receiving country’s ability to mitigate any threat posed by the detainee. . . .
It is also important to emphasize that a decision to approve a detainee for transfer does not equate to a judgment that the government lacked legal authority to hold the detainee. To be sure, in some cases the review participants had concerns about the strength of the evidence against a detainee and the government’s ability to defend his detention in court, and considered those factors, among others, in deciding whether to approve the detainee for transfer. For many of the detainees approved for transfer, however, the review participants found there to be reliable evidence that the detainee had engaged in conduct providing a lawful basis for his detention. The review participants nonetheless considered these detainees appropriate candidates for transfer from a threat perspective, in light of their limited skills, minor organizational roles, or other factors.
Aamer, as this Defense Department statement makes clear, was "unanimously approved for transfer," and the US "coordinated with the Government of the United Kingdom to ensure this transfer took place consistent with appropriate security and humane treatment measures."
To describe someone who has been "approved or transfer" as someone who was "cleared for release" is both factually false in a technical sense and implying of a larger falsehood: the idea that the US has known Aamer was "innocent" since 2007 but has kept him locked up anyway.Finally, I received the following note from the estimable Cori Crider--one of Aamer's attorneys--in response to my earlier post on the case, in which I posed the question of why Aamer had never challenged the factual basis for his detention in habeas. I invited her to reply and she writes,
For me to reply to it violates a cardinal rule we run here at Reprieve, which is not to engage with an entity that has no real role to play in the predicament of our clients. But bearing in mind Winston Churchill’s admonition about magnanimity in victory, since you were kind enough to invite a reply, allow me to raise a couple of issues in passing.
You refer (and link approvingly) to the Nov 2007 Wikileaks detainee assessment. This surprises me. You know as well as anyone that those JTF assessments do not reflect the considered view of the Defense Department, and were superseded by the conclusions of Matthew Olson’s Gitmo Task Force. The Defense Department’s own processes cleared Shaker first under the Bush administration, and the Task Force later did the same. You also know that DOD had an institutional veto over the latter process.
For someone who claims to be dedicated to hard-headed deliberation about national security issues, as well as suspicious of leaks, you say nothing about the many demonstrated problems with the leaked 2007 assessments.
I have seen the classified files, which constrains what I can say. Most prisoners’ JTF assessment files, however, are a toxic mixture of misinformation abused out of the prisoner in Gitmo; extracted from a different prisoner in one of the CIA’s torture facilities; or, most often of all, fabricated by one of Guantánamo’s serial informants. Several of these men are known (to the Defense Department) to have concocted tall tales about over a hundred other prisoners to earn favours and avoid abuse. Given all this it’s no surprise that my client the al-Jazeera cameraman Sami al-Haj was described as a member of al-Qaida, or that my client Mohammed el Gharani (taken to Gitmo aged 14) was said to be an ally of Shaker’s in al-Qaida’s so-called ‘London cell’ at a time when Mohammed would have been about eleven and had never left his family home in Saudi Arabia.
As for habeas, you also know that meaningful review of the government’s detention authority died a slow death throughout 2010 and 2011, the final knell of which was the DC Circuit’s decision in Latif. Virtually no one pressed petitions after Latif. It would have been nigh on malpractice to do so. My organisation, which has precious few attorneys but represented more detainees than any other single entity, litigated as many cases we physically could before Latif. (I note that Mr. [Younous] Chekkouri, [a former detainee] now in detention in Morocco, litigated his case through a hearing and there never was any judgment. He remained in detention for many years thereafter, as the umpteenth example of how otiose the process had become.)
I suspect the underlying source of your irritation is that in the United Kingdom the years-long detention of Shaker Aamer is not a partisan issue. Britons on the left and right consider it a simple matter of the rule of law. The reason for that is, while (as you often point out) the Supreme Court of the United States has upheld the Bush and Obama administrations’ theory of indefinite global war, that is not a view that the majority of the world’s populace shares.In Temple Church at the moment you can visit a copy of the Magna Carta, on display for the celebrations of its 800th anniversary. Habeas corpus, of course, is older even than its mention in the Great Charter. It means a great deal to the people of the British Isles. They are proud of habeas, proud of the way they have handed down this principle, however imperfectly, over centuries of British justice. They should be.