End 14 Years Of Injustice

How Guantánamo’s Periodic Review Boards Exposed Woefully Distorted Intelligence Assessments

A banner featuring Yemeni prisoners in Guantánamo, including some of the men who have been facing Periodic Review Boards at Guantánamo.

By Andy Worthington, October 19, 2016

Over the last three years, at Close Guantánamo, we have been monitoring the Periodic Review Boards, the most recent review process at the prison, set up to give some semblance of justice to the cases of men held year after year without charge or trial, and subjected to varying forms of abuse and, in some cases, torture. See our definitive Periodic Review Board list here.

The first two review processes — the Combatant Status Review Tribunals and the Administrative Review Boards — took place under President Bush. Consisting of panels of three military officers, they were essentially designed to rubber-stamp the men’s designation, on capture, as "enemy combatants" who could be held indefinitely without charge or trial. The prisoners were allowed to be present for the unclassified section of the hearings, but were not allowed to hear classified material, and often had no idea where the allegations against them had arisen.

The third review process, which did not involve any interaction with the prisoners themselves, took place in 2009, under President Obama. The Guantánamo Review Task Force was a high-level, inter-agency process in which the cases of the 240 men who were held when President Obama took office were examined, and decisions taken about whether to release them, to put them on trial, or to continue holding them without charge or trial. In its final report, in January 2010, the task force approved 156 men for release and 36 for prosecution, and designated 48 others for ongoing imprisonment without charge or trial, on the basis that they were allegedly "too dangerous to release," even while acknowledging that insufficient evidence existed to put them on trial.

This latter designation was profoundly troubling, of course, not just because it involved President Obama explicitly supporting imprisonment without charge or trial, but also because of the basis for their designation as "too dangerous to release." If insufficient evidence existed to put them on trial, that was because the evidence was actually inadequate, and did not rise to the level of evidence, because it consisted, in many cases, of statements made by the prisoners themselves, about themselves or their fellow prisoners, which were often made under circumstances that were not conducive to truth-telling — under torture or other forms of abuse, or even being bribed with better living conditions.

Other dubious information evidently came from U.S. military and intelligence reports, and from Guantánamo itself came assessments of their purported dangerousness based on their behavior during their imprisonment.

And yet, these assessments have proven to be wildly inaccurate. Of the 48 men described as "too dangerous to release," 41 have faced PRBs, and 28 have been approved for release. Just ten have had their ongoing imprisonment upheld, and three others are awaiting decisions.

23 other PRBs have taken place for men initially recommended for prosecution, who were made eligible for PRBs when the basis for prosecutions largely collapsed in 2012 and 2013. Just eight convictions have been secured in the military commission trial system set up for the Guantánamo prisoners, and four of those decisions were overturned, when appeals court judges ruled that the war crimes for which the men had been convicted were not legitimate and had been invented by Congress.

In these cases, the task force’s caution appears to have been more justified, as 15 of the 23 have had their ongoing imprisonment approved. Two others are awaiting decisions, but that still means that six men — long regarded as so significant that they were recommended for trials — have instead been approved for release. Nevertheless, the decisions to continue holding prisoners remain contentious — in part because the PRBs are a parole-type process, designed to seek out contrition and peaceful and constructive post-Guantánamo plans, even though parole is a process for men who have been tried and convicted of crimes, but also because of the validity of ongoing doubts in some cases, and the blunt truth that anyone against whom allegations of terrorism can be levelled should be put on trial and not held indefinitely without being charged or tried.

As the PRBs have taken place, we have been watching and writing about the examples of extreme, misplaced caution, and the severe inadequacies in the intelligence-gathering process — the six men seized in Karachi in September 2002 and regarded as an Al-Qaeda cell, for example, who were finally told that the US government no longer believed that such a cell had ever existed (five of the six have now been approved for release and two have been freed, and the sixth is awaiting a decision); an Afghan (Abdul Zahir) alleged to have been a chemical and biological weapons maker, who was finally revealed as a case of mistaken identity; and a Yemeni (Mustafa al-Shamiri) regarded as a senior al-Qaida military trainer, who was also eventually revealed to have been a case of mistaken identity.

These are just the most noticeable examples, but throughout the PRBs distortion and exaggeration about the significance of prisoners has been widespread.

The Miami Herald's recent report

In a recent article for the Miami Herald, "New Guantánamo intelligence upends old 'worst of the worst' assumptions," Carol Rosenberg, who has been writing about Guantánamo since the prison opened, examined these cases, and others, like the so-called "Dirty 30," purported bodyguards for Osama bin Laden who, it has long been clear, had their role massively exaggerated.

I wrote about the distortions in the descriptions of the "Dirty 30" way back in April 2009, in an article for FAIR (Fairness & Accuracy in Reporting) entitled, "Dangerous Revisionism Over Guantánamo," responding to a November 2008 New York Times front-page article which opened, as I described it, with "an unqualified opening line that could have been written by the Pentagon": "They were called the Dirty 30—bodyguards for Osama bin Laden captured early in the Afghanistan war."

Rosenberg began her article with the Afghan poisoner who wasn’t — Abdul Zahir, who was one of ten prisoners put forward for a trial by military commission in the trials' first incarnation under President Bush. "U.S. Rangers captured him and some 'suspicious items' in a July 11, 2002, raid on his home on suspicion of 'involvement with chemical/biological weapons activity,'" Rosenberg wrote. Zahir was accused of being an al-Qaida conspirator named Abdul Bari, which was a name he had also used, but it was also an extremely common name. When he was approved for release in July, it was, as Rosenberg noted, in large part because an intelligence assessment had concluded that he "was probably misidentified as the individual who had ties to al-Qaida weapons facilitation."

Air Force Lt. Col. Sterling Thomas, who had been his defense attorney since 2010 — as part of his ongoing but unfulfilled eligibility for a military commissions trial — told Rosenberg, "They had the wrong guy the whole time. Abdul Zahir shared a name with a terrorist that they thought they were looking for. He unfortunately was further condemned by the fact that United States forces couldn’t distinguish between bomb-making materials and the salt, sugar and petroleum jelly he had nearby when he was wrongly arrested."

The State Department, Rosenberg noted, is currently "pursuing a plan to resettle or repatriate him."

In a number of interviews, Rosenberg spoke to intelligence sources — including people who served at Guantánamo in what she described as "the wobbly world of early war-on-terror intelligence gathering and analysis," in which "a suspicion built on circumstances of capture gelled into allegations of membership in a terror cell that on reflection more than a decade later probably didn’t exist." Her sources "blamed bad intelligence on a combination of urgency to produce, ignorance about al-Qaida and Afghanistan at the prison’s inception and inexperience in the art of investigation and analysis."

Mark Fallon is one of the experts who spoke to Rosenberg. A veteran NCIS agent, from 2002 to 2004 he was the deputy commander of the Criminal Investigation Task Force, which sought prosecutions for alleged terrorists held at Guantánamo, and he is the author of Unjustifiable Means: The Inside Story of How the CIA, Pentagon, and U.S. Government Conspired to Torture, to be published in January 2017.

"It was clear early on that the intelligence was grossly wrong," Fallon said, pointing out that most of the prisoners at Guantánamo "weren’t battlefield captives." As Rosenberg described it, he called many "bounty babies" — "men captured by Afghan warlords or Pakistani security forces and sent to Guantánamo 'on the sketchiest bit of intelligence with nothing to corroborate.'"

A Seton Hall Law School investigation in 2006 established, drawing on the Pentagon’s own records, that "[o]nly 5% of the detainees were captured by United States forces," while "86% of the detainees were arrested by either Pakistan or the Northern Alliance and turned over to United States custody." Moreover, many of those handed over were in fact sold, as the U.S. was making bounty payments averaging $5000 a head to their Afghan and Pakistani allies for al-Qaeda or Taliban suspects — or those who could be presented as such. In his 2006 autobiography, In the Line of Fire, no less a figure than Pakistan’s President Musharraf bragged that, in return for handing over 369 terror suspects to the U.S., "We have earned bounty payments totaling millions of dollars."

Once these men got to Guantánamo, as Rosenberg described Fallon’s assessment, "the task of discerning tidbit from truth was complicated by an Army leadership unskilled in military intelligence," who argued that "you couldn’t coddle the enemy."

This was the period of the most extreme and wide-ranging torture at Guantánamo — applied to at least one in six of the men held, when the authorities used "manipulation of temperatures, sleep, diet and solitary confinement to get a captive talking at a time when Fallon’s team was advocating rapport building." As he explained, "Sleep deprivation only muddles memories," but as it was used widely the interrogators using coercion ended up with "a lot of false information based on some pretty poor interrogations being done partly by military interrogators in that time frame."

He added that it was "no surprise that early prisoner profiles are imploding under Periodic Review Board scrutiny." As he explained, "That’s why people are so successful doing cold case homicide cases. People make decisions based on what they knew then. I don’t want to say that the facts changed. The facts grew. When you’re working cases, cases evolve. As you get additional facts, you interpret it differently."

One analyst who worked at Guantánamo in its early years for the Joint Intelligence Group, which coordinates interrogation operations at the prison, spoke about how the JIG was "looking for anything you can pin on these guys." The soldier-turned-civilian contractor, who spoke anonymously, said that analysts "weren’t making things up." As he explained, "We were working overtime trying to figure out who we had, learning this culture as we go along." His unit, he revealed, "was isolated, started off knowing more about Russia and Bosnia than Afghanistan and al-Qaida and was under pressure to help stop the next terror attack."

"Everybody’s drinking the Kool-Aid. You see conspiracies everywhere," he said, adding that the intelligence unit was "picking up on one or two things and holding on to it tightly like it was gospel."

One result, as Carol Rosenberg explained, was how "being captured with a cheap Casio watch on your wrist made you a terrorist."

As she described it, "Analysts were told that an al-Qaida bomb-making course gave its graduates Casio F-91W or A159W models as gifts. Separately, it was understood that those models could be used as detonation devices. So possession of one became 'an indicator of al-Qaida training in the manufacture of improvised explosive devices,' according to a 2006 intelligence unit Matrix of Threat Indicators for Enemy Combatants'" released by WikiLeaks in 2011. I worked with WikiLeaks as a media partner on the release of these files, and discussed this document at the time.

The analyst called the Casio watch scenario "[a]bsolutely ridiculous," and "an awfully big leap," especially because, as Rosenberg added, "a footnote in the very same matrix explained that 'approximately one-third' of Guantánamo prisoners who were captured with that ubiquitous model of watch 'have known connections to explosives.' Meaning two-thirds did not."

Fallon, discussing the problems with the intelligence-gathering, said, "They would take any tidbit of information and use that. It’s what the psychologists call confirmation bias. If you are predisposed that that person never leaves Guantánamo, you make judgments and conclusions on those facts based on that predisposition. We were looking for corroborated information, not just a tidbit. That’s why you do investigations, not just interrogations, to corroborate that information."

Fallon added that there was also "pressure to defend the use of Guantánamo" as a whole. Army Maj. Gen. Geoffrey Miller, the commander of the prison from 2002-04, who had no experience of interrogation, spoke endlessly about securing "actionable intelligence" at Guantánamo, and so "[t]he rush to justify the place as gathering 'actionable intelligence' … did not 'allow for more sober thoughtful analysis.'"

The anonymous analyst also noted that fear of recidivism — of prisoners returning to the battlefield — "infected" the assessment process and added that some analysts were aware that the prisoners’ treatment could also have had negative results. "If this guy wasn’t an enemy before, he is now," as he put it.

In her article, Carol Rosenberg discussed the recidivism reports, released by U.S. government departments — initially, the Pentagon, and more recently the Director of National Intelligence — that have had a profoundly negative impact on securing the release of prisoners from Guantánamo throughout Obama’s presidency. She cited the most recent report claiming that 17.6 percent of former prisoners have taken part in terrorist or insurgent activities after their release, but as no details are ever provided for these claims, it is impossible to take them at face value — although, as I have been reporting for many years, that has never stopped the mainstream media from repeating them uncritically.

Turning to the assessments of the Guantánamo Review Task Force, Rosenberg spoke to Matt Olsen, the task force’s director, who "went on to run the National Counterterrorism Center that today prepares prisoner profiles for the parole-style board." Olsen told her that, even in 2009, the task force members "struggled at times to definitively identify detainees because of the multiple names they used," and he added that there were "a few pretty complicated cases."

Reaching "beyond Defense Department analysis to include material from the CIA and other agencies," Olsen explained, the task force uncovered labels, like the "worst of the worst," adding that some of them were "'myths' that would be debunked."

He also explained, "We started looking at the detainees and we realized these guys were not all the same. There were important differences among the detainees, the role they played and threat they posed. We had to dig into terms like 'associated with al-Qaida,' for example, to understand exactly what that meant from a threat perspective and whether those links were strong or tenuous."

One example of the task force’s extreme caution was the case of Mustafa al Shamiri, assessed in his 2008 military file released by WikiLeaks as "a 'high risk' captive of consequence, a senior al-Qaida training camp trainer and guesthouse logistician." He was declared "too dangerous to release" by the task force, but in January this year his PRB declared that the earlier intelligence in his case was "discredited," and that he had been confused with someone with a similar name. Although cleared for release, al-Shamiri is still at Guantánamo, awaiting a third country that will take him in, as the entire U.S. establishment refuses to allow any Yemenis to be repatriated, citing security concerns.

Seeking to discover "who got it wrong, and when," Rosenberg spoke to Cully Stimson, the Pentagon’s deputy assistant secretary of defense for detainee affairs in 2006 and 2007, who recalled that "the intelligence was at times puzzling enough that he’d go to Guantánamo to study material in the JIG’s evidence locker," where "[s]helves of the prefab building in the Detention Center Zone were stacked with material that arrived on the cargo planes carrying the captives from Afghanistan — from wallets and wristwatches to notebooks and family photos."

A former prosecutor and defense lawyer, Stimson’s job "included recommending to then-Deputy Defense Secretary Gordon England whether to release" certain prisoners. He said that he was involved in "delving deeper than written reports to try to distinguish tip from truth in a captive’s file."

Discussing releases based on updated intelligence, Stimson told Rosenberg, "The skeptical side of me says the scales are tipped in the favor of transfer and they’re going to do what they need to do bureaucratically to get it done. I would hate to think that people are shading or suppressing raw intelligence to the contrary. At the same time what I don’t know is if additional information has been developed over time that would lead a reasonable person to that conclusion. If that’s the case, then it is what it is."

The former analyst, however, pointed out that there was a widespread awareness of possible errors in the early years. He said he "recalled analysts writing assessments in a secure facility poking fun at one another," asking, for example, "How’s your kingpin over there?" But he also explained that "it was hard to be the spoiler who poked holes in a previous analyst’s pronouncements."

Mark Fallon also explained another key point — that, in Afghanistan, soldiers were required to send prisoners to Guantánamo with "no effective screening mechanisms," something I have been writing about ever since I first began researching Guantánamo in 2006. As I explained in 2011, "as former interrogator Chris Mackey (a pseudonym) explained in his book The Interrogators, the U.S. high command, based in Camp Doha, Kuwait, stipulated that every prisoner who ended up in U.S. custody had to be transferred to Guantánamo — and that there were no exceptions."

Fallon explained that this situation meant that analysts "had to start from scratch trying to figure out who the U.S. held in the cages at Camp X-Ray," as Rosenberg described it. As Fallon put it, "Guantánamo became more of a dumping ground rather than a place, at least from my position, that we were told was supposed to be a facility for high-value targets for either intelligence or prosecution."

For the "Dirty 30," the evolution of the threat they supposedly posed arose because, as Carol Rosenberg described it, "The intelligence unit was sorting files, and somebody tasked with finding bodyguards noticed the common capture of 30 men delivered by Pakistani security forces and so labeled them. But by the time the files leaked, in 2011, a review of prison and court records shows, the Bush administration had repatriated 10 of them, including a Moroccan profiled as a leader of the Dirty 30 in July 2003. Updated, unclassified profiles cast doubt on whether some still were bodyguards — or that aspect of the assessment has simply vanished."

She also noted how the leaked 2006 "Matrix of Threat Indicators" had taken as "an act of faith" the existence of the "Karachi 6" terror cell, and yet, in December 2015, the intelligence community "debunked the idea of the Karachi 6 in a series of intelligence profiles," stating that "it is more likely the six Yemenis were elements of a large pool of Yemeni fighters that senior al-Qaida planners considered potentially available to support future operations."

In other cases, Rosenberg concluded, the PRBs have "disclosed new information that may have eluded the prison’s intelligence unit." This is currently the case with additional material that is being looked at in the cases of five men whose ongoing imprisonment has already been recommended, and who may, as a result, be recommended for release, but it also happened in the case of Mohammed al-Qahtani, a Saudi suspected of being the intended 20th hijacker on 9/11, who was subjected to a specific torture program in Guantánamo. Al-Qahtani’s PRB revealed a previously unknown — or previously undisclosed — history of severe mental illness back in Saudi Arabia, although this information did not lead to a recommendation for his release.

With the population of Guantánamo down to just 60 men, it is important to credit the role the PRBs have played, with 20 men released as a result of the board’s deliberations, and 14 others awaiting release. However it remains disheartening that, nearly 15 years since Guantánamo opened, we are still discovering the extent to which thoroughly unreliable information has been used to continue holding men described as the "worst of the worst" when, in so many cases, that was simply not true at all.