The Evanescent Exonerations of Guantánamo Bay

Five military panels that cleared Guantánamo prisoners from their enemy combatant charges were later reversed by subsequently formed military panels acting on subsequently found evidence.

All these panels reached their decisions unanimously.

One of the detainees to experience these evanescent exonerations was Mr. Abdullah Khan (ISN 556). He was in fact cleared by two military panels before a third one was formed that found him to be properly classified as an enemy combatant after all.

This last decision was allowed to stand. Like all the reversals of enemy combatant determinations in the Combatant Status Review Tribunals (CSRTs) that have been made public, it went from a not-an-enemy-combatant (NEC) decision to an enemy-combatant (EC) determination.

None of the evidence used to reverse an exoneration can be found in the released portions of the CSRTs. Can it be found in the classified portions? Candace Gorman is the lawyer for Mr. Hamid al Ghizzawi, another Guantánamo detainee who experienced a shortlived exoneration. She had a chance to review the new evidence used in Mr. al Ghizzawi's case. She reports there was none. Furthermore, according to an Army major who sat on six reversed CSRTs, the "new evidence" for the makeovers consisted solely of a different conclusion (see below).

The chart below summarizes the reversed exonerations we have identified. This chart is followed by passages lifted from the CSRTs where these reversals were acknowledged. They close with links to the full versions of the source documents.

The five reversals uncovered here add one to the four discovered in No-Hearing  Hearings, a report produced by Mark Denbeaux and his associates. That report was based on a smaller set of CSRT records.

Could there be more exoneration reversals? Yes. An Army Major who wishes to remain anonymous has stated that:

I sat on up to 6 CSRT hearings where there was a unanimous decision that the detainee was a Non Enemy Combatant ("NEC"). In all of those NEC cases, the Command directed that a new CSRT be held or the original CSRT was ordered reopened. In each of those cases, the "new evidence" that was presented was in fact a different conclusory intelligence finding, which was not justified by the underlying evidence. I sat on all but one of the new CSRT's that were ordered after an NEC finding (see Testimony in the Teesdale Declaration, sections V and W).

Crucially, none of the five reversed exonerations we have identified included an Army Major (see chart below). Consequently, we would have to add six to the ones below, for a total of eleven.

Moreover, as of June 2007, 572 detainees had undergone CSRTs (see here). This report is based on the unredacted information found in only 196 (34%) of them.

Of the 572 detainees that underwent CSRTs, only 38 (7%) were definitively exonerated by them.

Notes

1. “On 16 November 2004 a tribunal unanimously determined that the detainee was not properly designated as an enemy combatant. Following that tribunal, CSRT intelligence personnel conducted another search of the Government Information for evidence relevant to ISN 250’s status. They collected additional evidence which eventually became exhibits R-18 through R-29. Due to the detachment from OARDEC of two of the three members of the original tribunal panel, the additional evidence, along with the original evidence and original Tribunal Decision Report, was presented to Tribunal panel #32 to reconsider the detainee’s status. (One of the members of the original tribunal sat on the new tribunal panel.) Following their consideration of the new information along with the original information, this Tribunal unanimously determined that the detainee was properly classified as an enemy combatant” (CSRT ISN 250, p. 1736).

 2. “On 24 November 2004 a Tribunal unanimously determined that the detainee was not properly designated as an enemy combatant. Following that Tribunal, CSRT intelligence personnel conducted another search of the Government Information for evidence relevant to ISN #654’s status. They collected additional evidence which eventually became exhibits R-17 through R-20. Due to the detachment from OARDEC of two of the three members of the original Tribunal panel, the additional evidence, along with the original evidence and original Tribunal Decision Report, was presented to Tribunal panel #32 to reconsider the detainee’s status. Following their consideration of the new information along with the original information, the second Tribunal unanimously determined that the detainee was properly classified as an enemy combatant” (CSRT ISN 654, p. 3246).

 3. “On 1 December 2004 a tribunal unanimously determined that the detainee should no longer be classified as an enemy combatant. On 9 March 2005 the tribunal was re-opened for consideration of additional evidence. This additional evidence became exhibits R-27 and R-28 (attached to enclosure (3)). Due to the detachment from OARDEC of one of the three members of the original tribunal panel, the additional evidence, along with the original evidence and original Tribunal Decision Report, was presented to tribunal panel #33 to reconsider the detainee’s status. The tribunal president and tribunal judge advocate for both the original and the addendum proceedings were the same. Following their consideration of the additional information along with the original information, the second tribunal unanimously determined that the detainee was properly classified as an enemy combatant” (CSRT ISN 949, p. 4319)

4. “On 15 December 2004, the original tribunal unanimously determined that the detainee should no longer be designated as an enemy combatant. Following that tribunal, CSRT personnel conducted another search of the Government Information to ensure that all relevant evidence had been provided to the tribunal. They collected additional evidence that eventually became exhibits R-17 through R-22 (attached to enclosure (5)). Due to the removal of one of the three members of the original panel, the additional evidence, along with the original evidence and original Tribunal Decision Report, was presented to tribunal panel #30 to reconsider the detainee status. On 21 January 2005 that tribunal also unanimously determined that the evidence should no longer be classified as an enemy combatant. Once again, additional information regarding the detainee was sought, found, and presented to yet a third tribunal. This additional additional [sic] information became exhibits R23 through R30. This time, the three members of the second tribunal were no longer available, but the one original tribunal member who was not available for the second tribunal was now available for the third. That member, along with two new members, comprised tribunal panel #34 and sat for the detainee’s third tribunal. Following their consideration of the new additional information along with the information considered by the first two tribunals, this Tribunal determined that the detainee was properly classified as an enemy combatant” (CSRT ISN 556, p. 2839).

6. This Lieutenant Colonel is Stephen Abraham (see Congressional Hearing, May 20, 2008).

Acknowledgements

The research for this report was conducted by Celisse Pinkney. Almerindo Ojeda supervised this research and drafted the report. The authors of this report wish to thank Buz Eisenberg, Joshua Colangelo-Bryan, Diane Amann, Colby Vokey, Ramzi Kassem, and Eugene Fidell for comments to earlier versions of this report.