Thanks to President Bush’s announcement on Wednesday, we now know that Khalid Sheikh Mohammed and thirteen other serious terror suspects have been transferred to Guantanamo Bay. But what about the other 400 or so prisoners who have been in the detention facility there now for up to five years? Who are they, and how dangerous are they? This is a question that only a few journalists have pursued since 2001. The answers they uncovered are astounding, yet despite the efforts of these reporters the predicament of the detainees has still not been fully exposed.
In the spring of 2002, Roy Gutman, then a reporter for Newsweek, learned that a few Kuwaiti families had hired lawyers for their kin being held at Guantanamo. “I made a beeline” for the lawyers, says Gutman, now the foreign editor of Newsday. He wanted to test the U.S. government’s claims about the detainees. Gutman told Tom Wilner, the Kuwaitis’ lead lawyer, that he “wanted access to all his files.” Wilner complied. “He left me in his office,” says Gutman, “and I worked until about 11 p.m. I left via the emergency exit.”
Such skepticism about the government’s claims would prove to be well-founded — and quite rare. Until recently, reporters have seldom sought to test the Bush administration’s contention that, as Secretary of Defense Donald Rumsfeld put in early 2002, the Guantanamo detainees were “the worst of the worst,” and “among the most dangerous, best-trained, vicious killers on the face of the earth.”
The government would be hard-pressed to prove such characterizations. Indeed, as the New York Times reported after the Abu Ghraib photos of abuse had turned detainee treatment into a big story, a CIA report had concluded in summer 2002 that the majority of Guantanamo detainees probably didn’t deserve to be there. How, then, did so many noncombatants end up at Guantanamo?
After the Taliban fell in November 2001, the U.S. military moved to set up what are known as Article 5 hearings. Mandated by the Geneva Conventions, the hearings are meant to cull from the ranks of captured personnel any noncombatants swept up by mistake. For the military, the hearings were standard operating procedure. It held them during the first gulf war, as it has done during every war since the late 1940s, when the Geneva Conventions were adopted.
But President Bush took a different tack. As the New Yorker’s Jane Mayer recently noted, in January 2002 Bush declared that al Qaeda and Taliban suspects were a new kind of enemy, and he reversed the military’s order for Article 5 hearings by issuing an executive order establishing that all detainees in U.S. custody in Afghanistan were in one way or another associated with al Qaeda or the Taliban, and thus “enemy combatants.” The executive order also declared that detained al Qaeda suspects weren’t covered by any aspect of the Geneva Conventions.
“They missed the first screening process,” says Mayer. “They actually stood it down. I look back and think that was the beginning of this huge mess.”
The change in the detainees’ status wasn’t noticed by the press at the time, but in the July 8, 2002, edition of Newsweek, Gutman and his colleagues detailed what turned out to be some of its after-effects.
With the key help of an Afghan stringer named Sami Yousafzai, Newsweek retraced the paths traveled by a handful of Kuwaiti detainees now at Guantanamo. (The magazine didn’t name all the men, but at least one of them has been released while others are still at Guantanamo.) It found witnesses in Afghanistan supporting the claim that the men were indeed aid workers who, as was the case for many detainees, had been captured and sold for bounty by tribal leaders, and who, after successive rounds of selling, had ended up in U.S. custody.
Besides discovering that some of the prisoners at Guantanamo appeared to be innocent of any involvement in combat or terrorist activity, Gutman also found that the Pentagon wasn’t planning to investigate the detainees’ stories. Asked why not, a Pentagon official told Newsweek, “Your question suggests that there is something akin to a criminal investigation at work. That is not what we’re doing.”
“I tried to meet with [then-Deputy Defense Secretary Paul] Wolfowitz, whom I know,” says Gutman. “I tried to talk to other officials, and they just had no interest in hearing what we knew. That was really the most distressing thing of all. They never tried to really learn who these people were. I talked to senior Pentagon officials: ‘You say you picked up people on battlefield. I want to know in what battle, where, when, etc.’ I was told, ‘We’re not asking questions like that.’ It tells you something about the administration strategy. They basically were going to throw away the key.”
Gutman knew that by looking at just five detainees, he only had a small slice of the picture. “But if we knew these guys were probably innocent, what about the others? I expected there would be a lot of other stories like this coming out. And I was wrong.”
The question of who, exactly, was at Guantanamo simply didn’t resonate. In April 2003, the New York Times published a front-page story (subscription required) noting that, according to military officials, “only a small number of the detainees are members of al Qaeda,” with the rest most likely being “nobodies.” Except that reference was in the nineteenth paragraph, and the story itself was presented as a simple check-in on Guantanamo, with no headline-worthy revelations: “Detainees From the Afghan War Remain in a Legal Limbo in Cuba.”
In the past few years, the picture has begun to come into focus as more journalists have joined in exploring who the detainees really are. Among the best pieces was a New York Times investigation published in June 2004 which concluded that most of the detainees seemed to be Taliban cannon fodder, and that officials had “exaggerated both the danger the detainees posed and the intelligence they have provided.” (The piece also cited the CIA’s conclusions from 2002.)
At National Journal, Corine Hegland was planning a profile of the white-shoe lawyers who have been representing many of the Guantanamo detainees. Hegland says she conducted interviews with about ten of the attorneys, and that at the end of the sessions each attorney would mention the same thing: “‘You know, my client wasn’t caught on the battlefield and he isn’t tied to al Qaeda.’ I was taking the train back from New York one night, and it hit me over the head, ‘Holy crap, what happens if the attorneys are telling me the truth?’”
Finding the answer wasn’t easy. After a Supreme Court ruling in 2004 giving Guantanamo prisoners access to federal courts, lawyers for the detainees filed petitions challenging their clients’ imprisonment. In about 130 of the cases — there are about 400 prisoners — a judge ordered the Pentagon to hand over its evidence.
Each prisoner’s file included a page or two of the military’s summary of evidence, often accompanied by supporting memos and a transcript of the hearing in which the military had reaffirmed that the prisoner was in fact an “enemy combatant.” The files were publicly available at federal courthouses. But they had been rarely explored in depth, and their contents were never compiled systematically, which is exactly what Hegland set about doing.
After two months of sifting the information, Hegland had her answer. “The data was really clear,” she says. “It was mind-boggling.” It showed that most of the detainees hadn’t been caught “on the battlefield” but rather mostly in Pakistan; fewer than half were accused of fighting against the U.S., and there was scant evidence to confirm that they were even combatants. In other words, most of the detainees probably were entirely innocent.
Just a few days after Hegland published a three-part series on her findings in early February, a law professor at Seton Hall University, Mark Denbeaux, and his son, Joshua Denbeaux, who together have represented Guantanamo detainees, published a study that also used the Defense Department’s own data, though a somewhat different set. After stripping out the prisoners’ names, along with the supporting memos and transcripts, the Pentagon had publicly released the summary of evidence against every Guantanamo prisoner. Using that larger but less detailed data set, the Denbeaux’s findings echoed Hegland’s: Only 8 percent of detainees at Guantanamo were labeled by the Defense Department as “al Qaeda fighters,” they found, and just 11 percent had been captured “on the battlefield” by coalition forces.
Before Hegland published her stories, she presented her conclusions to Pentagon officials, who continued to deny that many at Guantanamo could be there by mistake. Like Gutman, Hegland concluded that the officials weren’t really lying. Instead, they didn’t know, and didn’t want to know, the truth. “I don’t think anybody at DoD had looked at actual data and the patterns,” she says. “They kept asking these guys about 9/11, every single one.”
Eric Umansky is an assistant managing editor of ProPublica.
It’s not only the Department of Defense that evinces a continued lack of interest in the detainees. President Bush has repeatedly said that he’d like to close Guantanamo but that it’s not easy since, as he put it in a June 2006 press conference, “These people have been picked up off the battlefield, and they’re very dangerous.” No reporter present challenged the statement.