By William Fisher The Public Record 2/08/09

A prominent law professor is charging that the Defense Department is issuing questionable data on the number of Guantanamo detainees who have been released “and then returned to the battlefield” because the government “is now in a position where they have to find some bad guys — even if they have to invent them by naming people who were never there.”
Their ultimate aim, Professor Mark Denbeaux of the Seton Hall University law school told us, “is to foment fear among American voters and limit the freedom of the Obama Administration to release any of the detainees still imprisoned.”
Denbeaux heads the law school’s Center for Policy and Research. The Center has issued a report which it says “rebuts and debunks” the most recent claim by the Department of Defense (DOD) that 61 “former Guantánamo detainees are confirmed or suspected of returning to the fight.”

The report is one of a series produced by the Center’s faculty and law students. Professor Denbeaux says the Center has determined that “DOD has issued ‘recidivism’ numbers 43 times, and each time they have been wrong –this last time the most egregiously so.”
He told us, “Once again, they’ve failed to identify names, numbers, dates, times, places, or acts upon which their report relies. Every time they have been required to identify the parties, the DOD has been forced to retract their false IDs and their numbers. They have included people who have never even set foot in Guantánamo–much less were they released from there.”
He added, “They have counted people as ‘returning to the fight’ for their having written an Op-ed piece in the New York Times and for their having appeared in a documentary exhibited at the Cannes Film Festival. The DOD has revised and retracted their internally conflicting definitions, criteria, and their numbers so often that they have ceased to have any meaning — except as an effort to sway public opinion by painting a false portrait of the supposed dangers of these men.”
Denbeaux charged that the Defense Department has issued numbers 43 times, and said these numbers conflict with each other. He noted that the government’s numbers are “seriously undercut by the DOD statement that ‘they do not track’ former detainees.”
“Time and time again, the Department of Defense, the Executive Branch, and other government officials have claimed publicly that Guantánamo Bay detainees who have been released have “returned to the battlefield” where they have then been re-captured or killed,” Denbeaux declared.
The Seton Hall report attempts to correct what it characterizes as errors in the latest DOD report, which was issued in mid-January. That report alleged that 61 detainees have returned to the battlefield.  
The Seton Hall report notes that in each of its 43 attempts to provide the numbers of the recidivist detainees, the Department of Defense has given different sets of numbers that are contradictory and internally inconsistent with the Department’s own data.
It says that DOD’s most recent press statement identifies no names, dates, places nor any conduct by released detainees.  “The raw numbers that are cited are unsupported, inconsistent with all other statements and appear to be presented to support the internal Department of Defense purposes,” the report says.
Previous DOD reports have said the numbers of recidivist detainees have been “one, several, some, a couple, a few, 5, 7, 10, 12, 15, 12-24, 25, 29, and 30,” the Seton Hall group contends.
But it adds that 82% of DOD’s publicly made claims “contain qualifying language,” including terms such as: “at least”; “somewhere on the order of”; “approximately”; “around”; “just short of”; “we believe”; “estimated”; “roughly”; “more than”; “a couple”; “a few”; “some”; “several”; and “about.”
Department of Defense statements about the number of recidivist detainees which do not identify the detainee, the act of recidivism, the place, or the time, are especially unreliable, Seton Hall’s report declares. It claims that in the two instances in which DOD provided written support —July 12 2007 and May 20 2008, their previous oral assertions were repudiated. For instance, the report says, in DOD’s July 12, 2007 press release, “the 30 recidivists reported by DOD in April 2007 is reduced to five.”
DOD’s report of July 2007 identified seven prisoners by name, but the Seton Hall group says that “as many as two of those seven named were never in Guantanamo, and two of the remaining five were never killed or captured anywhere. Of the three remaining, one was killed in his apartment in Russia by Russian authorities. None of them is alleged to have left their homeland or attacked Americans on a battlefield or otherwise.”
Meanwhile, Newsweek magazine is reporting that The Pentagon “is preparing to declassify portions of a secret report on Guantanamo detainees that could further complicate President Obama’s plans to shut down the detention facility.”
The publication says that the report “will provide fresh details about 62 detainees who have been released from Guantanamo and are believed by U.S. intelligence officials to have returned to terrorist activities.”
One such example, involving a Saudi detainee named Said Ali Al-Shihri, who was released in 2007, has already received widespread media attention when Pentagon officials publicly asserted that he has recently reemerged as a deputy commander of Al Qaeda in Yemen, Newsweek reports..
Previously known publicly as Guantanamo detainee No. 372, Al-Shihri is alleged to have been involved in an unsuccessful attack on the U.S. embassy in Yemen last September.
Newsweek says, “The decision to release additional case studies from the report is in effect a warning shot to the new president from officials at the Pentagon and U.S. intelligence agencies who are skeptical about some of his plans. Some Pentagon officials, including ones sympathetic to Obama’s goals, note the political outcry would be deafening should another example like Al-Shihri become public six months from now–and it turns out to be a Guantanamo detainee released under Obama’s watch rather than by the Bush administration.”
It adds, “The last thing Obama wants is for one of these guys [at Guantanamo] to get released and return to killing Americans.”
According to Newsweek, some counter-terrorism experts have raised questions about the significance of the Pentagon’s figures, noting that the number of so-called “recidivist” detainees represents only a small portion, about 12 per cent, of the approximately 520 detainees who have been released from Guantanamo since the detention facility was opened in January 2002. This compares with recidivism rates of as high as 67 percent in state prisons in the United States, according to Justice Department figures.
“There have also been concerns that Bush administration holdovers were deliberately playing up the cases in recent weeks in an effort to undercut Obama. One former senior U.S. counter-terrorism official noted to Newsweek that the Pentagon waited until the day after Obama signed his executive order mandating the closure of Guantanamo to confirm Al-Shihri’s renewed Al Qaeda ties,” Newsweek reports.
Approximately 240 detainees remain at Guantanamo. Human rights groups and defense lawyers contend there is little or no evidence of terrorist involvement against scores of them. This is also the opinion of some federal judges who in recent weeks have ordered the Pentagon to release some of them.
The Obama administration has given itself a year to shut down the facility, and is hoping that European countries including Portugal, Spain and Germany, will agree to take some of these detainees. The Bush Administration was able to  identify only two countries willing to take released detainees — Albania and Sweden.
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