Detained by fear at Gitmo


“I have here in my hand a list of ... names.”

When Sen. Joseph McCarthy told the Ohio County Women’s Republican Club of Wheeling, W.Va., on Feb. 9, 1950, that he held a list of 205 communists employed by the State Department, he ignited a firestorm and launched a career.

We now know there was no list. Even then, it was obvious McCarthy was not particularly punctilious about the numbers. In Wheeling it was 205; in Salt Lake City it was 57; on the Senate floor it was 81. Nor was he especially careful about the allegation. Maybe they weren’t all “card-carrying” communists. Maybe some were just “loyalty risks” or “people with communist connections.”

None of that mattered. The number, so peculiar and precise, seemed like the product of careful calculation by government insiders. And it fit with what many people wanted to believe, which also encouraged a suspension of disbelief.


I thought of all this recently because the “list” is back.

Jan. 11 marks 10 years since the first prisoners arrived at the U.S. military prison at Guantanamo Bay, Cuba. About 170 remain, even though most have been cleared for transfer by both the George W. Bush and Obama administrations, meaning they have been cleared for release from U.S. custody and transfer to the custody of another country. (In the past, the receiving country has typically released the prisoner in a matter of hours or days because they haven’t done anything wrong.) Yet none of these cleared prisoners is likely to leave any time soon, thanks to Congress’ annual pot-clanging fest, also known as the National Defense Authorization Act.

Every year, Congress conditions money for the Defense Department on all manner of draconian amendments. This year, like last year, Congress added restrictions that make it all but impossible for the president to transfer prisoners from the base. Congress passed the amendments in the name of national security and dared the president to veto the bill as we head into a presidential election.

Obama blinked. And you wonder why Americans hate politics.

The restrictions on transfer are motivated by the myth of the superhuman terrorist, a demon so dangerous that every precaution seems essential. And the favorite argument to keep them forever is the so-called list of recidivists. Sen. John McCain (R-Ariz.), for instance, warned during the Senate debate over the defense spending bill that “27% of detainees who were released got back in the fight.”

Claims like this surface periodically. Leave aside the obvious incongruity of describing someone as having “returned” to behavior without having shown they did anything wrong in the first place. All we know is that once they were at Guantanamo, now they aren’t, and someone thinks they may be dangerous.

The last time this issue came up, a colleague and I tried to get to the bottom of it. We filed a request under the Freedom of Information Act. Turns out this “list” is like Gertrude Stein’s Oakland: There’s no there there.

Former Guantanamo prisoners are tracked by the Defense Intelligence Agency. But in response to our request, we learned that the DIA has no fixed criteria to determine whether a person has “returned” to anything: “DIA does not endeavor to create any sort of firm guidelines for identifying a detainee as having returned to the fight. The data collected to support this determination simply varies too greatly to allow for categorical simplification.”


For that reason, the DIA letter said, “the number of persons suspected of having returned to the fight is subject to constant change.... That number will rise and fall as DIA analysts gather new data and information and as those analysts revise their assessments of previously gathered evidence and intelligence.” A person today might be suspected of having returned to the fight because he has no known source of income. But if he gets a job the next day, he could be taken off the list.

Recently, the director of national intelligence told Congress that “81 [former detainees] are confirmed and 69 are suspected of reengaging in terrorist or insurgent activities after transfer.” He said a person can be “confirmed” based on a preponderance of the evidence but “suspected” based on nothing more than “plausible but unverified” information.

But this does not add much because we still do not know what it takes to make the list, or what these people have supposedly done. The government says it demands more than anti-American propaganda, and it describes what it could be, like recruiting someone to participate in a terrorist operation, but it is careful to note it could also be other stuff that’s not on the list. And because officials do not name names, no one can check what they say.

It is certainly true that some people have left Guantanamo and engaged in violent behavior. Independent studies by researchers at Seton Hall University indicate the number is substantially lower than the government’s estimate. As important, even according to the government’s numbers, the overwhelming majority of suspected “recidivists” are alleged to have engaged in unspecified and undefined “terrorist activities” in Turkey and Russia. Only a small percentage who have been released to Afghanistan or Pakistan, where U.S. forces are engaged, are suspected of wrongdoing.

But in a time of superhuman demons and cowed leaders, anyone who claims to hold in their hands a list of names will get what they want, and even cleared prisoners will stay locked up.

Joseph Margulies is an attorney with the MacArthur Justice Center and a law professor at Northwestern University. He is the author of “Guantanamo and the Abuse of Presidential Power.” He is counsel for Abu Zubaydah, a prisoner at the base.