While correcting President Donald Trump’s tweet about Guantanamo Bay detainees who have returned to the battlefield, White House Press Secretary Sean Spicer incorrectly claimed that in contrast to the detainees transferred or released by the Obama administration, “under the Bush administration, most of those were court ordered.”
The Bush administration released or transferred 532 Gitmo detainees, and less than a dozen were court ordered.
Spicer’s false narrative came while correcting incorrect information tweeted out by President Trump on March 7.
122 vicious prisoners, released by the Obama Administration from Gitmo, have returned to the battlefield. Just another terrible decision!
— Donald J. Trump (@realDonaldTrump) March 7, 2017
As we pointed out in a story that day, the vast majority of former Gitmo detainees who are confirmed to have reengaged were released or transferred by President Bush.
According to a report published March 7 by the Office of the Director of National Intelligence, there were 121 former Gitmo detainees “confirmed of reengaging” as of Jan. 15. Of those, 113 were transferred or released by President Bush and eight by President Obama.
In a press briefing on March 7, Spicer said Trump “meant in totality the number that had been released on the battlefield” under both presidents, not just Obama. At the next day’s briefing, a reporter asked Spicer, “Will he [Trump] retract or even apologize for that, given that he also called it a terrible decision by the Obama administration, and given that that was incorrect?”
Spicer reiterated that Trump “meant that the total number of people released from Gitmo” who have reengaged, and then Spicer went on to contrast the policies of Bush and Obama regarding the release or transfer of Gitmo detainees.
Spicer, March 8: Just to be clear, there is a big difference. Under the Bush administration most of those were court ordered. The Obama administration took great steps. They talked about — it was a campaign promise, frankly, from day one to close Gitmo.
This president is very clear that he understands the nature of the threat that the people in Gitmo pose to our nation, and the recidivism rate that there are among people we have released. That is a concern that he shares.
The reason the Bush administration did it was in many cases they were under court order. The Obama administration made it actually a priority to let people go, and to actively desire to close that camp and to release more and more of those people, especially in the waning days. There is a huge contrast between the posture and the policy of the last two administrations on how they were dealing with Gitmo.
There were 532 detainees of Gitmo who were transferred or released by the Bush administration, according to the ODNI report. Of those, 113 are confirmed to have reengaged. Another 75 are suspected of reengaging.
So were “most” of the 532 under Bush transferred out of Gitmo because of a court order? Hardly.
It wasn’t until June 2008 that detainees at Guantanamo won the right to go to federal court to challenge their confinement. In a landmark 5-4 decision, the Supreme Court ruled that detainees had a constitutional right to challenge their detention through writs of habeas corpus in federal court.
And on Nov. 20, 2008, a federal judge for the first time ordered the release of five Gitmo detainees, after the judge “reject[ed] government allegations that five men were dangerous enemy combatants,” the Washington Post reported.
That was just two months before Bush left office. By then, Bush had transferred or released more than 520 Gitmo detainees.
John B. Bellinger III, a National Security Council legal adviser in Bush’s first term and a legal adviser to the State Department in Bush’s second term, said Spicer’s claim that under Bush most detainees were released due to a court order is simply incorrect.
“Only a handful of Guantanamo detainees were released during the Bush Administration pursuant to court order,” Bellinger told us in an email.
“The Bush Administration voluntarily transferred more than 500 detainees to other countries, mostly to the countries of their nationality, so that they could prosecuted, detained, or monitored by their own governments,” Bellinger said. “The Bush Administration concluded that it did not want to hold these detainees indefinitely and that their own governments should instead take responsibility for them.”
Stephen Vladeck, a law professor at the University of Texas and an expert on national security law, told us via email that there were a few more court-ordered releases between the one on Nov. 20 and the end of Bush’s term on Jan. 20, 2009, but the total number was “no more than a dozen.”
“Virtually none of the detainees released from Guantanamo during the Bush administration were released ‘under court order,'” Vladeck said. “I have no idea where the Press Secretary is getting his information, but on this point, he’s not even close to being within a light-year of true.”
J. Wells Dixon, a lawyer at the Center for Constitutional Rights, which represents Guantanamo detainees, said that although detainees filed lawsuits challenging the legality of their detention as early as February 2002, those cases did not proceed to decisions on the merits until after the Supreme Court ruling in June 2008.
“It’s sort of obvious even to a casual observer that President Bush didn’t transfer anywhere close to 500 detainees, with or without court orders, in the last six months of his administration,” Dixon told us. “That just didn’t happen.”
The director of national intelligence has not publicly identified many of the confirmed or suspected recidivists, so it’s impossible to know precisely how many of those released by court order may have reengaged. But given that Bush released 532 detainees, and that 188 of them are confirmed or suspected of reengaging, it is safe to say — given that less than a dozen were court ordered — that very few (if any) of the court-ordered releases are recidivists.
We also note that Bush, himself, said in August 2007 that “it should be a goal of the nation to shut down Guantánamo,” though he added that “it is not as easy a subject as some may think on the surface.”
Thomas Joscelyn, who closely follows the detainees at Gitmo for the Long War Journal, said the Bush administration employed “a system similar to a green, yellow and red traffic light” to evaluate detainees.
Joscelyn, March 8: Green light detainees were determined to be “low” risk, either because they were Taliban conscripts, had no discernible ties to jihadists, or were otherwise said to pose little risk for a variety of other possible reasons. Most of the green light detainees were transferred or released within the first two years of Guantanamo’s existence.
Yellow light detainees may pose a threat to the US, its interests or allies. These are the so-called “medium” risk detainees, many of whom were thought to have at least some ties to the Taliban or al Qaeda, or were members of those groups, or were members of associated groups. Some medium risk detainees were even known al Qaeda members. The Bush administration transferred a large number of “medium” risk detainees.
Then there are the red light, high risk detainees, according to JTF-GTMO [Joint Task Force Guantanamo]. These detainees were assessed as posing a risk to the US, its interests and allies. The Bush administration transferred a significant number of “high” risk detainees. (Most of the detainees left when Obama came into power – nearly 3 out of every 4 – were also previously deemed “high” risk by JTF-GTMO.)
Joscelyn said the Bush administration increasingly had to deal with legal challenges “and this probably influenced their thinking.” But he said it is “simply not correct” to say most of the transfers under Bush were under court order.
“These transfers were mostly the result of the Bush administration’s policies — not court orders,” Joscelyn told us. One significant factor, he said, was that “a lot of countries lobbied to have their citizens freed, even if they were known or suspected jihadists.”
“The simple fact of the matter is this: In dozens and dozens of cases, the Bush administration decided to transfer detainees who were either known to pose a risk, or were strongly suspected of that,” Joscelyn said.
In the waning months of his presidency, Bush gave up on the idea of trying to close Gitmo, the New York Times reported, after concluding that “closing Guantánamo would involve too many legal and political risks to be acceptable, now or any time soon,” according to senior administration officials.
When Bush left office, only 242 of the 775 detainees who were ever held at Guantanamo were left, according to the New York Times.
During the 2008 campaign, Obama made closing Gitmo a prominent campaign theme. (Obama’s Republican opponent, Sen. John McCain, also vowed to close Gitmo, though via a different approach.) In one of his first acts as president, Obama issued an executive order on Jan. 22, 2009, calling for closure of the facility within a year, and took aggressive steps to lower the Gitmo population.
Bellinger said the Obama administration “focused more on outright release to third countries, rather than transfer for continued detention.” As Bush did, Obama also knowingly transferred some high-risk detainees, Joscelyn said, “and even accelerated that process over time, especially as Obama’s tenure was coming to a close.”
By the time he left office, Obama had reduced the number of detainees in Gitmo to 41. As of Jan. 15, the director of national intelligence reported, Obama had released or transferred 182 Gitmo detainees. Of those, eight were confirmed to have reengaged, and another 13 were suspected of doing so.
It’s one thing to take issue with Obama’s policy of releasing or transferring Gitmo detainees, many of whom were deemed high-risk, but it’s revisionist history for Spicer to say that Bush was under a court order to release “most” of the detainees.