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March 7, 2017

In case you missed it, this morning’s tweetstorm from the White House began with this missive:

It already is exhausting, and will continue to be, to try to fact-check everything that comes out of the mouth and Android of someone with such little interest in facts, but this one seemed too important to go unaddressed. Here are three basic problems with the Tweet:

1. The Central Claim of the Tweet is Affirmatively False.

As I tweeted this morning, the “122” figure certainly comes from the above chart, filed by the Office of the Director of National Intelligence (ODNI) last summer at Congress’s insistence. Taking the lowest-hanging fruit first, as the chart quite plainly demonstrates, 113 of the 122 detainees “Confirmed of Reengaging” (more on that in a moment) were released “Pre-22 January 2009,” i.e., by President Bush. This sizeable gap makes sense, given both the different size of the population during the relevant time periods and how much more rigorous the vetting procedures were under the Obama Administration than previously. Thus, even on the government’s own numbers, 92.6% of those detainees “confirmed of reengaging” were released by President Bush, not President Obama. For President Trump to suggest that all 122 were “released by the Obama Administration” is affirmatively false. He either knows better and lied in his tweet, or he just doesn’t read what’s in front of him.

2. The Government’s Recidivism Numbers Have Long Been Criticized.

In the above-referenced report, ODNI counted a detainee as engaging in recidivism whenever there was “A preponderance of information which identifies a specific former GTMO detainee as directly involved in terrorist or insurgent activities.” And ODNI’s basis for suspicions involve “plausible but unverified or single-source reporting indicating a specific former GTMO detainee is directly involved in terrorist or insurgent activities.” There are lots of problems with this definition, but here are three: First, it assumes, contra what we now know, that every Guantánamo detainee had previously been engaged in terrorist or insurgent activities (hence the “re” in recidivism). Second, it treats as “recidivism” involvement in amorphous “activities,” without any necessary connection to combat or battlefield activities (or, frankly, the United States)–such that one can be “confirmed of reengaging” through information that places them in the wrong place at the wrong time, without any clearer connection to hostilities or any evidence whatsoever that they “returned to the battlefield,” or did so in the context of the conflict between the United States and al Qaeda and its affiliates. Third, there’s no way to test these numbers, since they’re based upon classified intelligence and “a preponderance of information.” In other words, an unsubstantiated intelligence report that places a former detainee in the wrong part of Yemen at the wrong time can, by itself, apparently be the basis for a determination that the detainee is “confirmed of reengaging.” Intelligence reports have value, but we ought to be careful not to place too much weight on them when reaching broader conclusions about sensitive topics like recidivism.

3. Criminal Recidivism Rates are Much Higher.

Finally, even if ODNI’s numbers are accurate (President Trump’s tweet still isn’t, but c’est la vie), that means that somewhere around 15% of the detainees at Guantánamo have been “confirmed of reengaging.” That number shouldn’t seem that high in the first place (especially if these guys really are, as they’ve often been labeled, the “worst of the worst”). But consider this comparison by D.C. Circuit Judge Douglas Ginsburg, in his opinion concurring in the Court of Appeals’ 2012 decision in Hamdan:

Food for thought before anyone takes this latest tweet seriously…

Image: Protesters gather in front of the U.S. Supreme Court to mark 15 years since the first prisoners were brought to the U.S. detention facility in Guantanamo Bay, Cuba on January 11, 2017 in Washington, DC. The protesters were asking President Obama “to expedite releases from Guantanamo and to make public the full U.S. Senate Torture Report.” (Photo by Joe Raedle / Getty Images).

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