Thursday, January 22, 2009

Closure of Guantanamo & the "Field Manual for Government Interrogations"

On 22 January 2009, President Barack Obama signed an executive order closing the prison at Guantanamo Bay, Cuba, and directed all U.S. employees to follow the Army Field Manual (FM) that delineates clear rules on interrogating suspects. USA Today published the complete text of the executive order.

Both issues are not without problems in order to put into effect. “GTMO,” or “Gitmo” as Guantanamo Bay is referred to, will not just let all of the detainees free on the street. Joint Task Force Guantanamo (JTF-GTMO) has 245 people detained. What should be done with them?

Of the remaining 245, some can be tried by military courts of justice, if a case can be made against them. Others will be released—yet to which country? has been tracking the disposition of individual detainees so far, based on DoD announcements. They have been transferred to various countries around the world, from the U.K. to Somaliland to Afghanistan.

The Christian Science Monitor explores more of that issue in a recent article: “There is no magic bullet,” according to Mark Denbeaux, law professor at Seton Hall University. Who can be prosecuted? Who may have evidence tainted by torture?

Case by case, they will need to be cleared. And if any of them turn out to conduct attacks against the U.S., there will be a media storm of backlash to pay. Seton Hall Law has a very contemporary analysis of the recidivism rate — what the U.S. government reported as “having returned to the fight.” Figures are current as of 15 January 2009. The number of recidivist detainees reported ranges from a low of five to a high of thirty.

Considering that Guantanamo Bay had over 680 prisoners at its peak, and that is a low figure. For in a study of 15 U.S. states, there was an overall recidivism rate of 67.5% in a 2002 study of prisoner data from the period 1994-1997.

Telling comparisons for recidivism exist for certain types of crime. According to the Bureau of Justice Statistics:
  • Released prisoners with the highest rearrest rates were robbers (70.2%), burglars (74.0%), larcenists (74.6%), motor vehicle thieves (78.8%), those in prison for possessing or selling stolen property (77.4%), and those in prison for possessing, using, or selling illegal weapons (70.2%).
  • Within 3 years, 2.5% of released rapists were arrested for another rape, and 1.2% of those who had served time for homicide were arrested for homicide.
Given there have been a total of 779 detainees at Guantanamo Bay, of which 525 were released, having 5 or 7 of them return to terrorist or insurgent activities constitutes a recidivism rate of between 0.95% to 1.33%, depending on definitions, as Seton Hall condends, or as high as 5.7% if the DoD figure of 30 is used.

In terms of overall criminal justice statistical analysis, this rate of recidivism is in line with, or a bit ahead of other serious criminal activities such as murder and rape. Reporting may be low, because those who were released to lands uncontrolled by the United States may have conducted activities for which they were not caught or suspected of. It is not a pandemic of terrorism as many would purport. There has yet to be a Willie Horton of Guantanamo. The backlash of closing the facility could erupt if one emerges.

In comparison, four detainees committed suicide while in custody, and another 29 detainees attempted suicide between 2002-2006.

The process of setting forth a proper sense of justice for detainees has been years in the making. Today’s action by President Obama is merely the latest in a series of rebukes of Bush administration policies that go back to the June 2006 Supreme Court ruling that the military tribunals conducted at Guantanamo were illegal.

This is not the final page in the history of Gitmo, yet it may be the end of a most ignominious chapter.

Field Manual for Lawful Interrogations

Army Field Manuage 2 22.3, or FM 2-22.3, Human Intelligence Collector Operations, was issued on 6 September 2006. It is referred to specifically in the executive order:
“Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2 22.3 (Manual).”
This applies U.S. Army procedure to all branches of government, and all departments and agencies, both civilian and defense. It covers the CIA and the FBI, as well as the DoD.

Furthermore the order was a stinging rebuke of the Bush administration policy allowing individual and departments freedom to make their own interpretations of written law:
“From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2 22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation — including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2 22.3, and its predecessor document, Army Field Manual 34 52 issued by the Department of Justice between September 11, 2001, and January 20, 2009.”
In other words, “Whatever the Bush administration told you was okay to do, was not okay to do.” Section after section cites the rule of U.S. and international law, and the common interpretations thereof. In all of it, it strongly infers the United States cannot be an exception to these rules.

Shape of Things to Come

The executive order covered not just Gitmo, but also all CIA-run detention facilities, as per its Section 4(a). In Section 4(b) it also orders the International Committee of the Red Cross (ICRC) access to all detained individuals. We may find out more about other extrajudicial activities in the days ahead.

It also established a Special Interagency Task Force on Interrogation and Transfer Policies, whose members will consist of these members of government, or their designees:
This is the team that will shape the future of U.S. policy towards detainment and management of persons who have been arrested or incarcerated for being alleged or proven as “enemies, foreign or domestic.”

Curiously, as an observation of web content management and the bureacracy of the transition process, of all the web sites of the government agencies listed above, there is no mention of Leon Panetta yet at CIA other than in a Director’s Statement dated 9 January 2009. At DHS, the page for Michael Chertoff, former Secretary of Homeland Security, has been deleted, with prejudice (it leads to a broken link). One would hope that they’d have kept his page, yet modified it to refer to him in the past tense as a former leader of DHS.

Let’s observe how our leaders get these details fixed and squared away in due time, as they begin the major work ahead of them.

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