Guantanamo State of Mind

President Obama should reject the arrogance that made the infamous prison possible.

Jacob Sullum | From the April 2009 issue

In January 2002, the Pentagon began imprisoning men it described as "very hard cases"—"the worst of the worst" terrorists in American custody—at the U.S. Naval Base in Guantanamo Bay, Cuba. During the next seven years it released more than 500 of them. "What's left," Vice President Dick Cheney declared in the final week of the Bush administration, "is the hard core." That was a few days before the Pentagon released half a dozen more.

Unless the Bush administration recklessly loosed hundreds of hardened terrorists on the world, its initial descriptions of the detainees were mistaken. That pattern of error reinforces the argument against allowing the executive branch to wield the unchallengeable authority it asserted at Guantanamo.

As President Obama proceeds with his plan to close the prison, he should recognize that Guantanamo is not so much a place as a state of mind. It's an attitude that says: We know who the bad guys are, and we're not about to let anyone endanger national security by second-guessing us.

The Bush administration manifestly did not know who the bad guys were. Its methods for identifying "unlawful enemy combatants"—defined as anyone, anywhere who belonged to or supported the Taliban or Al Qaeda—were sloppy. More than 90 percent of the 779 men held at Guantanamo were captured not by Americans but by Afghan militiamen, Pakistani security forces, or other parties of dubious reliability, often in anticipation of bounties promised by the U.S. Many detainees were minor hangers-on or entirely innocent, held based on the uncorroborated word of self-interested captors or of prisoners eager to please interrogators who used "enhanced" techniques to extract accusations.

The Pentagon acknowledged that 17 Chinese Muslims captured in 2002 were incorrectly identified as unlawful enemy combatants but said it could not send them back to China because they might be persecuted there. At the same time, it appealed a federal judge's October 2008 order to release them inside the U.S.

Haji Bismullah, one of the men freed just before Obama's inauguration, fought against the Taliban and later served as a regional official in Afghanistan's pro-American government. After members of a rival clan who coveted Bismullah's position accused him of terrorist connections, he was held at Guantanamo for nearly six years until a military panel, belatedly heeding witnesses who vouched for him, decided he "should no longer be deemed an enemy combatant."

Between June, when the Supreme Court said Guantanamo detainees could pursue habeas corpus petitions in federal court, and mid-January, the government lost 23 of 26 Gitmo cases. One involved Mohammed el Gharani, a Chadian who was detained by Pakistani forces at a Karachi mosque in 2001, when he was 14. On January 14, U.S. District Judge Richard Leon ordered Gharani's release, finding that the case against him was based almost entirely on the uncorroborated, inconsistent accounts of two prisoners whose reliability the government itself had questioned. Among other things, Gharani was accused of belonging to a London-based Al Qaeda cell in 1998, when he was 11 and living in Saudi Arabia.

In November, Leon ruled that the government did not have enough evidence to detain five Algerians who were arrested in Bosnia in 2001 and accused of intending to fight with the Taliban. He found that the charge was based "exclusively on the information contained in a classified document from an unnamed source."

Leon, a Bush appointee who ruled in 2005 that Guantanamo detainees could not pursue habeas corpus claims, probably was inclined to side with the government. Furthermore, the Bush administration only had to show by "a preponderance of the evidence" (a likelihood of more than 50 percent) that the prisoners' detention was appropriate.

These cases speak volumes about the fallibility of the executive branch and the need for independent review of its detention decisions. I hope Obama is listening.