Safe To Release?

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 report, which could be released within the next few days, 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, according to two Pentagon officials who asked not to be identified talking about a document that is not yet public. One such example, involving a Saudi detainee named Said Ali Al-Shihri, who was released in 2007, received widespread attention Friday when Pentagon officials publicly confirmed that he has recently reemerged as a deputy commander of Al Qaeda in Yemen. Al-Shihri, once known publicly only as Guantanamo detainee No. 372, is suspected of involvement in a thwarted attack on the U.S. embassy in Yemen last September.

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. "The last thing Obama wants is for one of these guys [at Guantanamo] to get released and return to killing Americans," said one senior Defense Department official who asked not to be identified because of the political sensitivities.

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 percent, 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.

Still, a few top Obama administration officials have privately acknowledged that the problem of still dangerous detainees at Guantanamo is more worrisome than some of president's campaign statements might suggest. In May 2008, when the Defense Intelligence Agency (DIA) last prepared a report on released Gitmo detainees who had returned to terrorist activities, it counted the number of recidivists at 37. Among the examples: Mohammed Ismail, one of the "juveniles" at Guantanamo who, upon his release in 2004, had praised his treatment by Americans, saying at a press conference, "They gave me a good time at Cuba." He was recaptured four months later, participating in an attack on U.S. forces near Kandahar, Afghanistan.

As Pentagon press secretary Geoffrey Morrell disclosed two weeks ago, by mid-January of this year, 24 new detainees had been added to the DIA recidivist tally. The recent confirmation of Al Shihri bumped the overall number to 62, 18 of whom are alleged to have directly participated in terror attacks.

This does not necessarily mean that Guantanamo detainees released in the later part of 2008 were responsible for the increase. There is often a lengthy lag time between the time a detainee is freed and when U.S. intelligence officials learn of the individual's terrorist involvement. Still, the spike in the recidivist rate is not surprising, defense officials say. "The easy ones were released first," said a senior Pentagon official. "As time goes on, the releases become harder and harder. These are increasingly more difficult cases."

As of now, about 240 detainees remain at Guantanamo. Human rights groups and defense lawyers insist there is little or no evidence of terrorist involvement against scores of them. Some federal judges agree, having ordered the Pentagon in recent weeks to release some of them. The Obama administration, which has given itself a one-year deadline to shut down the facility, is hoping that European countries, like Portugal, Spain and Germany, will agree to take some of these detainees. The administration is also trying to get the government of Yemen to take about 100 of its nationals—the largest single group of prisoners at the facility. But even these assumptions are shaky. The Pentagon has been trying for months to hammer out an agreement with the Yemeni government to monitor released Guantanamo detainees with little success.

The hardest chunk involves a core number, estimated by some officials to be about 50 or 60, who are deemed to be highly dangerous but who, for a variety of reasons—including the fact that they may have been subjected to waterboarding or other "enhanced" interrogation techniques—may be impossible to try in any federal or military court. The Obama administration is likely to have no choice but to move them to another facility inside the United States, such as the U.S. naval brig in Charleston, S.C., or the military prison in Fort Leavenworth, Kan., and hold them indefinitely without trial, thereby risking worldwide criticism that it is simply creating a "Guantanamo, South Carolina" or a "Guantanamo, Kansas."

While the Obama administration may create some sort of system for periodic judicial review of these cases, the one thing it won't do is release these detainees, said one senior Obama adviser who asked not to be identified talking about the White House's internal thinking on the matter. Asked about the prospect that some of these detainees might be let go, the adviser brushed the thought aside. "That's not going to happen," he said.