Law School vs. Gitmo

Politicians, policy makers, military officials, independent analysts and pundits have debated endlessly whether to close the Guantanamo Bay terrorist detention facility and what legal rights and remedies should be provided to the detainees held there. At the outset, both sides in the debate agreed the detainees there were dangerous and properly classified as enemy combatants. That changed beginning in 2005 when the Department of Defense released unclassified studies of 517 records (one was a duplicate, bringing the correct figure to 516) from the Combatant Status Review Tribunals (CSRT).

Professor Mark Denbeaux of Seton Hall Law School and Joshua Denbeaux, of the Denbeaux & Denbeaux law firm, studied the materials and issued a series of reports, the first of which asserted that individuals were being held who were not a serious threat to our national security and had not conducted or supported hostile action against the United States. The Denbeaux Report was widely commented on and provided ammunition to those claiming Guantanamo should be shut down.

Specifically the Denbeaux Report finding included claims that: 1). 55% of the detainees are not determined to have committed any hostile acts against the United States or its coalition allies; 2) only 8% of the detainees were al Qaeda fighters and 3) many detainees were held only because of “mere affiliations” with groups not on the Department of Homeland Security terrorist watch list.

However, the Denbeaux Report itself has now been called into question. The Department of Defense engaged the Combating Terrorism Center (CTC), a highly acclaimed independent civilian academic institution (housed at West Point but not funded nor managed by the military) to examine the Denbeaux Report and determine its validity.

The CTC reached a very different conclusion. Its findings, based on a review of the same records as the Denbeaux Report, found: 1) 73% of the records contain at least one piece of evidence that met the threshold definition of the highest threat assessment, namely that the detainee posed a “a demonstrated threat”; 2) 95% of the publicly available CSRT unclassified summaries contained evidence that a detainee supported hostile activities in some way or was affiliated with groups that executed and/or supported terrorist acts, or received weapons training or possessed weapons that could be used in support of terrorist activities; and 3) six of the publicly available CSRT unclassified summaries contained no evidence that fit any of the CTC’s twelve threat variables. Moreover, in a separate Annex the CTC found serious flaws in the Denbeaux Report.

We talked to the authors of the CTC Study as well as an outside expert on Guantanamo to find out how the Denbeaux Report, which received such widespread attention, could have differed so widely with the CTC Study’s findings and what the CTC Study means for policy makers. (We did not receive a response to our request for comment from Professor Denbeaux.)

Jarret Brachman, Director of Research at CTC and LTC Joesph Felter, Director of CTC, explained in a phone interview that their aim was to “clarify the debate” and return the discussion over Guantanamo to a “fact based discussion.” They did not embrace one of the Pentagon’s suggestions to do a point by point rebuttal, although they did publish an Annex to address the specific conclusions in the Denbeaux Study, and attempted to do a comprehensive academic study which specifically avoided policy recommendations and conclusions.

How could their results differ so widely from the Denbeaux Report? The CTC authors cite three methodological flaws in the Denbeaux Report: 1) excluding relevant information; 2) interpreting language in the summaries which “disregards the contextual meaning of the summaries”; and 3) making conclusions without factual support. Beyond that they contend that the Denbeaux report failed to make its methodology and data available and clear.

Dr. James Jay Carafano, a recognized expert in the field of Homeland Security, a visiting professor at the National Defense University and Georgetown University, and the Assistant Director of Heritage’s Kathryn and Shelby Cullom Davis Institute for International Studies, questions whether the Denbeux Report underwent peer review and concurs with the CTC that it was flawed because “data was excluded, ignored and misinterpreted.” He concludes that its authors were simply not “methodically as rigorous” as CTC.

He also says that the Denbeuax Report made a critical error in assuming that the 516 unclassified documents were the only evidence to support incarceration of the detainees. Carafano says that “the basis for detention is heavily weighted toward classified data” and therefore their conclusions, further undermined by their “flawed methodology,” are unreliable. In short, he says the notion that they are “a bunch of innocent sheep herders is not credible.”

If the CTC authors and Carafano are correct and the detainees are in fact a threat to the United States, policy makers who contend that Guantanamo is a public relations nightmare which must be shut down must answer the next question: what do we do with the prisoners if Guantanamo is shut down?

The CTC authors decline to offer an opinion, contending that their study is meant only as a factual analysis, not to suggest policy. Carafano suggests that the very same concerns that led us to utilize Guantanamo as a facility — the need to safeguard detainees, protect those operating the facility, provide legal processes, obtain intelligence from the detainees, and protect the American people — would remain “unshakable obligations” which would be made immensely more difficult by dispersing the detainees into other facilities.

What about returning the prisoners to their home countries as we did with David Hicks who was returned to Australia? The CTC authors and Carafano explain that option has not proven without risk. Both cite the fact that many prisoners, numbering in the 30’s, have been released, some of which reappeared on the battlefield or whose remains were recovered in suicide bombing incidents.

Congress, the military and the Bush Administration as well as independent experts, pundits and academics will now have the opportunity to review the CTC Study. If the CTC authors are correct, no one should be under any illusion that the risk posed by the Guantanamo Bay detainees is fictitious and any proposal to close it carries the responsibility to offer an alternative that will safeguard Americans, both on and off the battlefield.

As of this time we have not received answers to questions we posed to Professor Denbeaux about his study and the CTC Report but will, in subsequent reporting, be pleased to convey answers we might receive and any response by the CTC authors.