The Guantanamo Detainees Posted by: Dale Franks
on Thursday, February 09, 2006
I have to take some issue with Jon's post below. Let me stipulate that I agree with Jon's ultimate conclusion, which is that the administration has been fundamentally dishonest about the Guantanamo detainees. Yet, though I ultimately arrive at the same place, I reject Jon's reasoning in its entirety. His objections rest on a deeply flawed premise, and a fundamental lack of understanding about the law of armed conflict, which, in my view, undercuts his conclusion.
Jon's post, Corine Hegland's National Journalstory, and Stewart Taylor's summary, all seem to me to start from a premise that there is some Due Process right or some principle of habeas corpus that places an obligation on us in our treatment of the Guantanamo detainees.
Nothing could be further from the truth. There is absolutely no 4th, 5th, or 14th Amendment principle that applies to the detention of enemy combatants. As such, the detainees have no standing to raise any petitions of any kind in federal courts that rely on those constitutional provisions.
The Constitutional protections embodied in the 4th, 5th, and 14th amendments are, in general, protections against criminal prosecution and punishment. Military detention, on the other hand, is not a punishment. It is solely a prudential detention for military purposes. Being a POW is not a crime.
The only rights that POWs—or POW analogs—have are outlined in the Geneva Conventions. And the people to whom those rights, such as they are, are extended, are fairly limited.
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.
3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
If you get caught with a gun in your hand by opposing military forces, and you don't belong to one of those limited groups, then you can be stood up against a tribunal, and shortly afterward, against a wall, while you puff on that final Marlboro.
The only rights that POWs—or POW analogs—have are outlined in the Geneva ConventionsNow, as it happens, nearly all of the Guantanamo detainees do not fall into one of the categories to which Geneva Convention rights must be extended. Under the Convention, we are legally allowed to execute them after their tribunal has clarified their status. Now, that's a harsh law, and it is so for a reason. It's sole purpose is not, as is popularly supposed to protect soldiers, although it does, but rather to protect civilians. It rigidly defines the allowable limits of lawful combat forces, both to prevent irregular forces from fighting in such a way as to encourage reprisals against civilians, and to allow opposing forces to identify combatants, so that civilians can be spared outrages by the opposing force.
Thus the penalty for being an unlawful combatant is literally whatever the capturing armed forced deems it to be. Traditionally, this has been death. Unlawful combatants are deemed to so dangerously blur the line between civilians and combatants, that they are intentionally afforded no legal protection whatsoever, except the minimal requirement of a competent tribunal to declare them to be unlawful combatants before shooting them.
In our current situation, the administration has—quite properly, in my view—both declared the terrorists to be ineligible for protection under the Geneva Conventions, while at the same time, treating them, for the most part, is if they were POWs, rather than simply shooting them after their tribunals. Which, I repeat again, would be both perfectly legal, and perfectly consistent with the law of war as it has existed for over two centuries. As far back as the Revolutionary War, for example, both the British and Americans routinely executed members of the opposing force who were captured out of uniform, Nathan Hale, for the Americans, and the British Major John André being the most famous examples.
So, I think we can dispense with the idea that the Guantanamo detainees have any standing to claim any Constitutional privileges beyond those that derive from our status as signatories to the Geneva Conventions—which, as it happens, offers them no protection at all, since their mode of fighting does not fall within the rigidly specified parameters of the Conventions.
In our current situation, the administration has—quite properly, in my view—both declared the terrorists to be ineligible for protection under the Geneva Conventions, while at the same time, treating them, for the most part, is if they were POWsCompared to what we could legally do to them, detaining them is relatively mild. Moreover, if we can shoot them, then, obviously, we can detain them instead. Whether we can do so indefinitely, of course, is another matter, but I see no reason to address that here.
One of the things I find interesting about Stewart Taylor's summation of the National Journal cover story is that, in the part Jon quotes, it summarizes no such thing. Ms. Hegland's story offers no information at all from which Mr. Taylor's statistical summary can be derived. Whatever his source for the statistical summary he provides, it has no basis whatsoever in Ms. Hegland's story. Where I suspect he derives his numbers—though he doesn’t identify it, is the Seton Hall University Law School study authored by Mark Denbeaux and Joshua Denbeaux, one of whom is an attorney for a Guantanamo detainee, and the other is, I believe, his son. This is the study Jeralynn Merrit refers to in her op/ed piece on the subject. One is also constrained to point out that the Seton Hall study is a product of a defense counsel for detainees, as is most of the information that appears in Ms. Hegland's story. The truth might, in fact, be somewhat different than the attorneys for the plaintiffs describe it.
In any event, the Seton Hall study is an analysis of the Detainee Letters released by the Department of Defense, and which summarize the findings of the tribunals that have been convened to determine the status of the detainees. As of now, there are 517 detainees at Guantanamo, and a further 180 or so detainees have been released, either to their home countries or into the custody of their or some other government.
While the study has been called "objective" by Ms. Merrit, the language used in the report often fails to live up to that sobriquet. For instance:
Although the Government’s public position is that these detainees are “the worst of the worst,” see supra note 2, the data demonstrates that the Government has already concluded that a majority of those who continue to be detained at Guantanamo have no history of any 3(b) hostile act against the United States or its allies.
According to the Government, fewer than half of the detainees engaged in 3(b) hostile acts against the United States or any members of its coalition. As figure 7 depicts, the Government has concluded that no more than 45% of the detainees have committed some 3(b) hostile act.
This is the language of an adversarial legal brief, not an objective scientific study. It makes a conclusion about the veracity of an administration claim, without informing us a) what that claim means, or b) showing evidence that rebuts it.
What is, "the worst of the worst"? What does it mean? Does it mean these are people who have killed huge numbers of American soldiers? Does it mean that they have tortured and killed huge numbers of Afghani civilians? Does it mean that they are the most committed terrorists? We don't know. "Worst of the Worst" is a fairly nebulous term of art. Adolph Eichmann, for example, committed no hostile acts against the armed forces of any of the United Nations, yet I doubt there is any question that he could rightfully be termed one of the "worst of the worst" when it came to rounding up Nazis.
This, of course, also highlights the disingenuousness of using whether a detainee committed a hostile act against the United States as a rebuttal. Whether an individual has committed a hostile act against the United States is irrelevant when it comes to military detention. For instance, you might have been a Luftwaffe clerk in Stuttgart from 1939 to 1945, and have committed no hostile acts against the United States during that time, either. Yet, in 1945, you would've been rounded up and sent to a POW camp for two years anyway. Your mere membership in the Luftwaffe is sufficient grounds to detain you. So the question of whether or not the detainees engaged in hostile acts against US forces is a red herring, both in terms of whether they should be detained, or whether they are "the worst of the worst", whatever that means.
Some of the other parts of the report also raise some questions about the study's objectivity.
The Taliban was a religious state which demanded the most extreme compliance of all of its citizens and as such controlled all aspects of their lives through pervasive Governmental and religious operation.19 Under Mullah Omar, there were 11 governors and various ministers who dealt with such various issues as permission for journalists to travel, over-seeing the dealings between the Taliban and NGOs for UN aid projects and the like.20 By 1997, all international “aid projects had to receive clearance not just from the relevant ministry, but also from the ministries of Interior, Public Health, Police, and the Department of the Promotion of Virtue and Prevention of Vice.”21 There was a Health Minister, Governor of the State Bank, an Attorney General, an Education Minister, and an Anti-Drug Control Force.22 Each city had a mayor, chief of police, and senior administrators.
None of these individuals are at Guantanamo Bay.
The Taliban detainees seem to be people not responsible for actually running the country.
Surely, the authors of the report must know, being lawyers, that mayors, policemen, health ministers, and central bank governors are civilians, and are therefore immune to military detention. They might, if we felt it necessary, be bound over for trial for war crimes or the like, but they wouldn't be eligible for transportation to Guantanamo Bay. In fact, the Geneva Conventions specifically prevent it. The only civilian national leaders that arguably might be eligible for military detention in quasi-POW status would be the national military command authorities, such as the Prime Minister, Minister of Defense, etc, and even that's questionable.
Conscription is not, nor has it ever been, a "get out of POW camp free" cardSo what is this bit of information supposed to prove? Well, actually, it does prove at least one thing, which is that we aren't intentionally violating the Geneva Conventions by rounding up civilian officials wholesale. Apparently, we are rounding up people we believe, rightly or wrongly, to be combatants. So, rather than being proof of the detentions being arbitrary and unlawful, the authors have, apparently unwittingly, laid out evidence of the reverse.
The authors go on to lament—objectively, of course—that some of the Guantanamo detainees were conscripts. Just as most of the Germans in US POW camps were conscripts, for example. Or, for that matter, most of the US POWs in German custody. Conscription is not, nor has it ever been, a "get out of POW camp free" card.
The Study concludes:
The detainees have been afforded no meaningful opportunity to test the Government’s evidence against them. They remain incarcerated.
This is utterly meaningless. First, it is framed, again, in the language of criminal law, which is entirely irrelevant to the issue at question.
The only requirement that the Geneva Conventions places on its signatories is that, when a suspected illegal combatant is caught, "such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." The definition of a "competent tribunal", and the standards it will adhere to in making its determinations, is left entirely to the signatory.
So, let's return to one of Jon's objections:
This is why we have due process. This is why we have transparency. This is why a free people who want to remain that way ought to insist we apply due process and transparency even to suspected terrorists.
This is completely incoherent. They are not suspected terrorists. They are suspected combatants. The only "due process" we are obliged to give them is a tribunal to determine whether they are in fact combatants, and, if so, if they are, in our judgement, illegal combatants or not.
Instead, we've largely stood by while the Bush administration has run roughshod over innocent people...
Innocent people? Innocent of what, precisely? Innocence and guilt are terms that are relevant to criminal law. They have no relevance to military detention. Being a member of, or a civilian auxiliary of, an armed force is not a crime. Even being an unlawful combatant is a "crime", only in the sense that, if you adjudged to be one, your fate rests entirely at the discretion of the opposing force.
The procedures for determining the status of combatants, lawful and otherwise, appear to have been highly arbitraryFinally, let me also say that Congress was entirely correct to eliminate the ability of the Guantanamo detainees to sue in federal court for habeas corpus for any reason related to the 4th, 4th, or 14th Amendments. Those protections are entirely inapplicable to military detainees. Any suggestion to the contrary would mean that the Federal Courts, in time of war, would be flooded by habeas petitions from legitimate POWs. Enemy combatants, and their detention as POWs, reside in a territory that is entirely alien to the Constitutional protections that apply to the normal run of criminal defendants.
Military detentions have a legal status that is not in any way related to those protections, but rather exist within their own unique and peculiar framework.
Ultimately, however, we arrive at the same place. Despite the glaring lack of objectivity in the Seton Hall study, and the sometimes silly overreach the report resorts to in order to try and make a point, looking at the original detainee letters does, in fact, raise serious questions.
First, the procedures for determining the status of combatants, lawful and otherwise, appear to have been highly arbitrary, with no consistent standard for determining the combatant status of the detained individuals. Hence, the release of 180 detainees, and the continued detention of another 517 or so, with no clear, objective means of determining why some detainees have been released, and others detained.
The traditions and history of our people have always been that legal and administrative rules should be clear, and impartially levied against those who run up against them. As such, then, despite the lack of clear standards that can be derived from the Geneva Conventions, it is incumbent upon us as Americans to ensure that the procedures at Guantanamo Bay are fair, and impartial. From what I can see, the procedures for determining the status of Guantanamo detainees are highly arbitrary. This is not the way Americans are supposed to go about such procedures. If the standard for making such determinations is not clear and predictable, then, no matter how "legal" that might be under the Geneva Conventions, it is a violation of traditional American ethics and morality.
Second, it is clear to me that the Administration has intentionally misled the American people about the nature of the detainee population. The Administration has spoken with imprecision about the detainees, at least as a legal matter, but it has done so in such a way as to leave a misleadingly negative impression about the type of detainees that have been held at Guantanamo.
In at least some cases, the detainees are not, in fact, the worst of the worst. Some are conscripts that, for one reason or another, have been detained without sufficient justification for bifurcating them out of the thousands of their comrades who are free. In other cases, there are serious questions about whether the detainee is a combatant at all.
Third, the interrogation techniques that have been used at Guantanamo, while not, perhaps, rising legally to the level of torture, inevitably extract false evidence and accusations. As Ms. Hegland's article relates:
For one special prisoner who wouldn't talk, interrogators employed further inducements. Detainee 063, a Saudi, had stubbornly claimed that he had gone to Afghanistan merely for love of falconry. By July 2002, the FBI knew that in August 2001 he had flown from a foreign country to Orlando, where a customs agent turned him away while a cohort, Mohamed Atta, the lead 9/11 hijacker, waited for him outside. On August 8, 2002, Detainee 063 was moved into an "isolation facility," where he stayed for the next 160 days, his cell continually flooded with light, his only human contact with interrogators and guards. He was questioned for 18 to 20 hours a day for 48 out of 54 straight days; he was threatened with a menacing dog; he was forced to wear a bra while thong panties were placed upon his head; he was leashed and ordered to perform dog tricks; he was stripped naked in front of women; he was taunted that his sister and mother were whores and that he was gay. Most of these techniques would later show up in Iraq, at Abu Ghraib prison.
By late November 2002, an FBI agent wrote, Detainee 063, Mohamed al-Kahtani, was "evidencing behavior consistent with extreme psychological trauma (talking to nonexistent people, reporting hearing voices, cowering in a corner of his cell covered with a sheet for hours on end.)"
Think about it. Whether you know something or not, whether you did something or not, you know what the interrogators want you to say. You know what another has said about you, because that is the information being presented to you. Was it the truth? Was it a lie? Did you simply have the bad luck to be the mug shot under a finger when another inmate wanted to end the endless questions?
It is clear to me that the Administration has intentionally misled the American peopleThis is precisely why all of the authors on this blog have argued repeatedly against the use of torture and coercive interrogation techniques. Give me a pocketknife, some salt, a field telephone, and some rope, and, eventually, I will get you to admit to witchcraft, and to name the other members of your coven. But, at the end of the day, I will really have no way to tell whether you are telling the truth, or just telling me what I want to hear. To the extent that you're telling me the truth, that's the result of luck, not skill. I'd prefer that we just shoot them up with scopolamine, and see what results we get from their free-association rambling, than subject them to Britney Spears music for a week. It'd be both more human, and faster.
Prisoners can always be broken, if that's what you want. But that doesn’t mean the information you derive from them afterwards is particularly reliable.
So, any determinations of status that are based on the results of coerced testimony are, in my view, utterly unreliable. And, yet, this appears to have been precisely what has happened in some cases at Guantanamo.
So, at the end of the day, the Bush Administration looks increasingly less trustworthy. And increasingly more zealous in dealing with detainees than is necessary, or even useful. One is reminded of Justice Brandeis' warning in Olmstead v. United States (277 U.S. 438):
Experience should teach us to be most on guard to protect liberty when governments purposes are beneficent. The greatest danger to liberty lies in the insidious encroachment of men of zeal, well meaning but without understanding.
The real tragedy of American politics today, therefore, is that our political choices have become so straightened. As it stands now, our choice is between Republicans who are willing to easily betray our principles in order to fight the Global War on Terror, and Democrats who are unwilling to fight a Global War on Terror at all.
The only "due process" we are obliged to give them is a tribunal to determine whether they are in fact, in our judgement, illegal combatants or not.
Once again, this is incorrect — read the text of Article 5:
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
All the stipulations in the GC are written on the assumption that the detainee was in fact belligerent. The GC is silent as to the appropriate course of action if there’s any doubt that an individual was a belligerent or not.
But the point is, if all they have is crap evidence and crap procedures like Jon outlined, a lot of them are, in fact, NOT belligerents.
It’s no good to say, "they’re enemy combatants so they’re not entitled to due process"—without due process it could be some poor sheperd, cabbie, dirt farmer. I mean, did you see the part about how 80%+ were picked up by the Northern Alliance or Pakistani intelligence?
Stop assuming the conclusion.
Also, be aware that the administration’s definition of "enemy combatant" is as expansive as its definition of "battlefield."
Um, you quoted that passage? Where? All I see is a link to the conventions. Anyway, if you quoted it, why do you still suggest that we’re obliged to hold tribunals to determine whether or not they’re combatants? The only requirement is, assuming they’re combatants, and if there’s any doubt as to whether they qualify under article 4, to hold a tribunal. Since the Taliban weren’t uniformed, there’s no doubt about their article 4 status assuming they were combatants.
Ah, I see — you quoted part of that passage, but not the most important clause for my point. I’m afraid you’ve not carefully read my comment either, because you continue to misread article 5. There are three categories of detainee — (1) combatants covered by article 4; (2) combatants not covered by article 4; (3) non-combatants. The "tribunal" requirement involves distinguishing only between (1) and (2) — the idea that a non-combatant was detained is not covered in the convention. In the case of the Taliban, there’s no uncertainty between (1) and (2), so there’s nothing in the GC that specifically requires us to conduct tribunals.
But perhaps it’s a minor point anyway, so I’ll leave it at that.
Al Qaedea prisoners have the potential to lie whether they are tortured, interrogated roughly, or just asked nicely.
That’s why their information, regardless of how you get it, has to be used wisely and in conjunction with other sources.
So, if someone fingers your mug-shot, and your phone number also appeared on a list of arabic names in a training camp, then you are in trouble...
Of course, when Sheikh Khalid says NOTHING and then begins to talk after waterboarding, you need to re-consider your position...
I think the main problem is that all the worriers really would need to see all the evidence to be satisfied and that just won’t happen. Should we be completely transparent and publish all of our intel to satisfy everyone that we are doing a decent job?
By its nature, these intel/prisoner issues will be hard to square the circle of making everyone happy.
Of course it is, but what’s not obvious is exactly what the requirement is for determining whether a given detainee is a combatant or not. The US asserted that everyone in Gitmo was a combatant, and there’s nothing in the GC that says we have to conduct tribunals to verify that, even though it becomes clearer and clearer that that isn’t the case.
The point is that the GC simply wasn’t written to address this question, so making statements about what the GC does and doesn’t require vis a vis illegal combatants is irrelevant to most of the actual complaints about how we’ve handled the detainees.
Let’s review the case of prisoner 063 who supposedly according to this post would have ended up giving false information.
"Detainee 063, a Saudi, had stubbornly claimed that he had gone to Afghanistan merely for love of falconry.By July 2002, the FBI knew that in August 2001 he had flown from a foreign country to Orlando, where a customs agent turned him away while a cohort, Mohamed Atta, the lead 9/11 hijacker, waited for him outside."
So, he was lying. He attempted to enter the USA to engage in mass terror, and then failing that, went to Afghanistan to continue his quest for Jihad. (or I guess he really does love falconry that much.) This detainee is obviously extremely high value and might know a lot about planned terror attacks. He is not a conscript or a cab driver. If there is anyone I want to get ANY information or confirming intel out of, it’s this guy.
"By July 2002, the FBI knew that in August 2001 he had flown from a foreign country to Orlando, where a customs agent turned him away while a cohort, Mohamed Atta, the lead 9/11 hijacker, waited for him outside. On August 8, 2002, Detainee 063 was moved into an "isolation facility," where he stayed for the next 160 days, his cell continually flooded with light, his only human contact with interrogators and guards."
Hmmmm, July to August 08 is up to 30 days where nice-nice interrogations could have been tried. But that isn’t in the report, is it? Is anyone suprised that a Saudi national caught in Afghanistan who had tried to enter the USA with Atta would be in an isolation facility? Wow, only human contact was with interrogators and guards? Uhhhh, did we do wrong by not letting this guy have visits from his family, maybe a conjugal?
"He was questioned for 18 to 20 hours a day for 48 out of 54 straight days."
Hmmmm, so he wasn’t talking much was he? So much for "everyone will break and finger random people in a mug book." In the end he starts acting crazy. Is he crazy? Don’t know. But he’s certainly holding out a long, long time...if he was spouting reasonable garbage, the interrogrations would not go on so long...he’s not broken yet.
"Think about it. Whether you know something or not, whether you did something or not, you know what the interrogators want you to say. You know what another has said about you, because that is the information being presented to you. Was it the truth? Was it a lie? Did you simply have the bad luck to be the mug shot under a finger when another inmate wanted to end the endless questions?"
Or in a more realistic example, the prisoner who made up a story, recants a bit, includes some truth and some falsehoods which under interrogaton could be eventually come out with some useful nuggets to be combined with other intel. Or maybe the religious fanatic who was willing to fly a plane into a buidling just doesn’t break at all, but goes crazy instead.
Sure, you will not get 100% truth from most prisoners, but the alternative is to throw up your hands and say "well, since I can’t be 100% perfect, then why bother at all?" And if you were really in charge of the Zoo for a day, this is the one high value target you do pull all the stops out for...you try EVERYTHING with this guy.
While acknowledging our concurrence on the conclusions we draw from the information, I should point out that your legal arguments are irrelevant to my post. As you often write, you should address what I wrote, not what you imagine I meant. At no point did I say that we violated existing law, or that existing law was applicable to the detainees. In fact, I’ve written extensively, going back to blogspot days, on the legal matters pertaining to the detainees and why they are not, from a US and international law standpoint, due much more consideration than they’ve gotten.
The issue is this, though: we codified concepts like due process, "fair trial", transparency and oversight into US law precisely because those processes help us apply the law in a manner more consistent with our values. We don’t follow due process because it is intrinsically valuable, but because it helps us "do justice" more efficiently.
We ought to apply those same ideals and processes to the detainees, not because we’re currently legally obligated, but because we believe innocent people ought not be punished — because we believe that the exercise of power needs to be restrained at every step, lest the whim of a politician become a law unto itself.
Jon (And Dale) properly state a libertarian maxim of not trusting government. However; Consider the words of Deb Burlingame the sister of one of the pilots killed on 9/11:
The mantra of civil-liberties hard-liners is to "question authority"—even when it is coming to our rescue—then blame that same authority when, hamstrung by civil liberties laws, it fails to save us. The old laws that would prevent FBI agents from stopping the next al-Mihdhar and al-Hazmi were built on the bedrock of a 35-year history of dark, defeating mistrust. More Americans should not die because the peace-at-any-cost fringe and antigovernment paranoids still fighting the ghost of Nixon hate George Bush more than they fear al Qaeda.
That’s certainly the tone put forward by Jon’s post, in particular. Taking such an anti-government mantra to such an extreme is precisely how we ended up with the Jamie Gorelick "Wall" for example, in the first place. You may recall, our agencies were rather hamstrung by that.
Make no mistake; there should be reasonable limits on government... but those limits... what is to be considered reasonable... tends to change with the times. We’re now in a war, gents.
(Under Bill Clinton such limits got needlessly tight... and reckless, frankly, all in the name of ’civil liberty’, of course.)
At at some point in all of this comes the choice of whom it is you trust more, our government or AlQuieda. And frothing anti-Government paranoia doesn’t help that choice to be any more rational.
You may not be suggesting it directly, but that in reality is what it comes down to. And the statement is not completely literal, and limited to AQ,(AQ simply provides the context here), but extends to any enemy.
Demanding good processes is not the same as trusting Al Qaeda. You’re positing an intellectually dishonest false dilemma. I don’t support "fair trials" in criminal cases because I "trust" murderers. I do so because I don’t trust the government to "do justice" in the absence of strict controls, oversight, etc.
Well, when people believe that gitmo detainnes have no terror connections because of National Journal articles, it shows that they are trusting the combantant more than the government.
I guess I have a really hard time believing that a large percentage of detainees are there on bad luck.
Then don’t read the National Journal articles. Read the 517 detainee letters to which I linked directly in the post. There’s your raw information, right there, straight from the DoD. Don’t take the NJ’s word for it. Read the original records.
As we see occasionally, innocent people have been convicted of murder after a hell of a lot more due process than the Guantanamo detainees have received. Why is it not conceivable that mistakes have been made under more problematic conditions? And let us not ignore precedent. The Phoenix program in VietNam was subject to "false positives" also, for some of the same causes. It is not a matter of trusting the government or the detainees, it is a matter of trusting the evidence and the judgement of individual decision makers.