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Inter- and Intra-Departmental Disagreements About Who Is Our Enemy is the title of the second report published by a legal team lead by Professor Mark P. Denbeaux, based on documents the US Department of Defense about the captives held in extrajudicial detention in the United States Guantanamo Bay detainment camps, in Cuba. [1]

Joshua Denbeaux, Mark Denbeaux's son, represents two of the captives, with his father, in presenting their writ of habeas corpus, as well as being a co-author of the reports. The other co-authors are eight law students: David Gratz, John Gregorek, Matthew Darby, Shana Edwards, Shane Hartman, Daniel Mann, Megan Sassaman and Helen Skinner.

The paper is widely cited in later works. [2] [3] [4]

Executive Summary

  • The report's Executive Summary identifies the different agencies within the United States Government which have published official lists of organizations identified with, or suspected of, an association with terrorism.
  • The report's Executive Summary then establishes that the detention of many Guantanamo captives was justified based on a suspicion of association with organizations that were not on those official lists.
  • The report's Executive Summary points out that membership in the organization intelligence analysts used to justify their continued detention would not have prevented the captives from getting a visa, and visiting the USA.
  • The final point in the report's Executive Summary states:
"This inconsistency leads to one of two equally alarming conclusions: either the State Department is allowing persons who are members of terrorist groups into the country or the Defense Department bases the continuing detention of the alleged enemy combatants on a false premise."

Method

Ths report, like the four other reports published by the Seton Hall team, was based on unclassified data that the Department of Defense released in the winter and spring of 2005.

Rasul v. Bush and the Combatant Status Review Tribunals

Initially the Bush Presidency asserted that captives taken during the "war on terror" did not qualify for any of the protections of the Geneva Conventions. The initial detainee policy did not have any provision for the captives to learn the allegations that lead to their detention, and they were to have no provision for refuting it.

The families and friends of some Guantanamo captives were able to serve as the captive's "next friend", and engage lawyers to initiate writs of habeas corpus on their behalf. Rasul v. Bush was the first habeas corpus submitssion to reach the Supreme Court of the United States. Part of the Supreme Court's ruling in Rasul v. Bush was a direction to the Department of Defense was that convene a Tribunal where the captives could learn, and try to refute, the allegations that lead to their detention.

The Geneva Conventions specify that captors convene what they call a " competent tribunal", when there was a question as to whether or not a captive was a combatant who was entitled to the protections of the Geneva Conventions.

The Supreme Court recommended that these Tribunals be modeled after the Tribunals described in Army Regulation 190-8. The Department of Defense called the Tribunals it designed Combatant Status Review Tribunals. Outwardly the two Tribunals were very similar. The main difference lay in their mandates.

AR 190-8 Tribunals were authorized to determine (1) that captives were combatants who qualified for the protections of the Geneva Conventions and full Prisoner of War status; (2) that captives were innocent civilians bystanders, who should be released immediately; or (3) combatants who somehow violated the rules of warfare, who should have the protections of POW status stripped from them.

The mandate of the Combatant Status Review Tribunals that Guantanamo captives were to go through was to determine whether the captives had been correctly classified as " enemy combatants" through earlier, secret procedures.

517 Summary of Evidence memos

The Department of Defense created the Office for the Administrative Review of Detained Enemy Combatants to oversee the CSR Tribunals, and later annual Administrative Review Board hearings. Each captive who was still held in Guantanamo at the time of the Rasul v. Bush ruling had a Summary of Evidence memo prepared for their Tribunal. The Tribunals were held from August 2004 through January 2005.

The Department of Defense complied with a Freedom of Information Act request from the Associated Press to release the memos. They released memos, with the captives' names and certain other information redacted. The DoD eventually released five portable document format files, through the winter and spring of 2005 that contained 517 of the 558 memos.

In September 2007, a year after the study was published, the Department of Defense released nine new files, that contained unredacted copies of all 558 of the memos prepared in 2004 and January 2005, and 14 additional memos prepared for 14 " high value detainees transferred from CIA custody to Gauntanamo on September 6 2006. The original memos, in addition to have the names redacted were released in an apparently random order. The files released in September 2007 had the memo sorted by ID number.

With a few exceptions, and ignoring the redactions, the captives' memos were identical in the two releases.

Intent

For this report the Seton Hall team examined all 517 memos. They looked for allegations that justified continued detention of a captive because it was believed they were associated with an organization that Department of Defense counter-terrorism analysts considered suspicions. The Seton Hall team then looked to see which organizations the Department of Defense considered suspicious were also considered suspicious by other Departments of the US Federal Government.

The Patriot Act requires the Department of Homeland Security to maintain and publish a list called the " Patriot Act Terrorist Exclusion List". The State Department is required to maintain and publish two lists: “ Designated Foreign Terrorist Organization” and the “ Other Selected Terrorist Organizations”

Conclusions

The Seton Hall team found that 164 of 517 captives whose memos they were able to examine faced allegations that by being associated with a group analysts found suspicious they were tied to the Taliban or al Qaeda. The Seton Hall t

The extra organizations the DoD suspects

The report contains an appendix entitled: " Defense Department list of terrorist organizations other than the Taliban or al Qaeda"

See also

References

  1. ^ Mark P. Denbeaux et al, Inter- and Intra-Departmental Disagreements About Who Is Our Enemy, Seton Hall University School of Law
  2. ^ Dicky Griggs (2010-01-21). "Guantanamo: It is not about them - it is about us" (PDF). State Bar of Texas, 26th ANNUAL LITIGATION UPDATE INSTITUTE. p. 8. Retrieved 2016-02-19. The Seton Hall analysis considered only Government documents and only the Government's conclusions, assuming for purposes of the report that the Government evidence was accurate. The reports did not consider denials of wrongdoing by the defendants, nor claims of innocence made by defense attorneys. The Government's own data strongly contradicts "official" claims being made to the media and the American public.{{ cite news}}: CS1 maint: url-status ( link)
  3. ^ Seth F. Kreimer (2008-09-02). "The Freedom of Information Act and the Ecology of Transparency". Journal of Constitutional Law. p. 1061. Retrieved 2016-02-19. Similarly, taken alone, any single transcript of the CSRT proceedings released in response to the Associated Press FOIA request in 2004190 has relatively little probative impact. But analyzed in the aggregate, and combined with information available from other sources, researchers generated persuasive evidence that the Guantanamo inmates were enormously far from the "worst of the worst."{{ cite news}}: CS1 maint: url-status ( link)
  4. ^ Margaret D. Stock. "Providing Material Support to a Foreign Terrorist Organization: The Pentagon, the Department of State, the People's Mujahedin of Iran, & The Global War on Terrorism" (PDF). BENDER'S IMMIGRATION BULLETIN. Retrieved 2016-02-19. U.S. law should also encourage the State Department and the Department of Defense to be legally consistent, rather than opening the U.S. government up to charges of hypocrisy.{{ cite news}}: CS1 maint: url-status ( link)

Category:Terrorism

Category:Guantanamo Bay captives legal and administrative procedures


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