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Article 3: List of former Guantanamo Bay detainees alleged to have returned to terrorism
Semiannually, the Office of the Director of National Intelligence (ODNI) publishes an unclassified “Summary of the Reengagement of Detainees Formerly Held at Guantanamo Bay, Cuba” (Reengagement Report). According to ODNI’s most recent Reengagement Report, since 2009, when current rules and processes governing transfer of detainees out of Guantanamo were put in place, ODNI assess that 5.1% of detainees – 10 men total, 2 of whom are deceased – are more likely than not to have reengaged in terrorist activities.  

Background

The Guantanamo Bay detention camp (Spanish: Centro de detención de Guantánamo) is a United States military prison located within Guantanamo Bay Naval Base, also referred to as Guantánamo, GTMO, and "Gitmo" (/ˈɡɪtmoʊ/), on the coast of Guantánamo Bay in Cuba. Of the 780 people detained there since January 2002 when the military prison first opened after the September 11, 2001 attacks, 731 have been transferred elsewhere, 39 remain there, and 9 have died while in custody.

Once every six months, the Director of National Intelligence (ODNI) – in consultation with the Director of the Central Intelligence Agency and the Secretary of Defense – is required to make public an unclassified “Summary of the Reengagement of Detainees Formerly Held at Guantanamo Bay, Cuba” (Reengagement Report). ODNI’s Reengagement Reports break down all transfers from Guantanamo by Presidential administration under which they occurred, and categorize them according to whether ODNI assesses a former detainee to be “confirmed” or “suspected” of “reengaging” in "terrorist activities" (as those terms are defined in the reports).

The standard for inclusion in the “confirmed” category is “a preponderance of information which identifies a specific former Guantanamo detainee as directly involved in terrorist or insurgent activities.” In other words, ODNI considers reengagement “confirmed” if it is more likely than not – i.e., there is at least a 51% chance – that a former detainee is directly involved in terrorist activities. For inclusion in the “suspected” category, ODNI need only find that there is “[p]lausible but unverified or single-source reporting indicating a specific former GTMO detainee is directly involved in terrorist or insurgent activities.”

DNI’s most recent Reengagement Report was declassified in December 2020 and made public on April 5, 2021. As of this report, 729 detainees had been transferred out of Guantanamo since the prison opened in 2002. According to ODNI, 125 of them were “confirmed of reengaging” (14.3%) and 104 "suspected of reengaging" (17.1%). However, the vast majority of those transfers (110 of them) occurred pre-2009, before current rules and processes governing transfers were put in place. After 2009 -- when transfers have been subject to the rules and processes that remain in place today -- the reengagement rates have dropped significantly, to 5.1% ("confirmed of reengaging") and 10.2% (suspected of reengaging"), respectively. The 5.1% statistic represents 10 men total, 2 of whom are deceased.

Intro
The Guantanamo military commissions were established by President George H.W. Bush – through a Military Order – on November 13, 2001, to try certain non-citizen terrorism suspects at the Guantanamo Bay prison. To date, there have been a total of eight convictions in the military commissions, six through plea agreements with the defendants. Several of the eight convictions have been overturned in whole or in part on appeal, mostly by U.S. federal courts.

There are five cases currently ongoing in the commissions -- and another two pending appeal -- including United States v. Khalid Sheikh Mohammed, et al—the prosecution of the detainees alleged to be most responsible for the September 11, 2001 attacks. None of those five cases has yet gone to trial.

History
As explained by the Congressional Research Service, the United States first used military commissions to try enemy belligerents accused of war crimes during the occupation in Mexico in 1847, made use of them in the Civil War and in the Philippine Insurrection, and then again in the aftermath of World War II. For the next fifty years, the U.S. relied on its establish federal court and military justice systems to prosecute alleged war crimes and terrorism offenses.

On November 13, 2001, President Bush issued a Military Order governing the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.” The Military Order effectively established the novel military commissions at Guantanamo Bay, which began in 2004 with charges against four Guantanamo detainees.

In 2006, the Supreme Court struck down the military commissions (in Hamdan v. Rumsfeld), determining that the commissions violated both the Uniform Code of Military Justice and the 1949 Geneva Conventions. In response, and in order to permit the commissions to go forward, Congress passed the 2006 Military Commissions Act (MCA). Congress significantly amended the MCA in 2009. In 2019, exercising authority granted to him under the MCA, the Secretary of Defense published an updated Manual for Military Commissions, which sets forth the current procedures that govern the commissions.

Cases and Status
Of the 779 men detained at Guantanamo at some point since the prison opened on January 11, 2002, thirty two total have been charged in the military commissions. Charges were dismissed in 12 of those cases, and stayed in another. The U.S. government has procured eight convictions total, six of which were achieved through plea agreements with the defendants. U.S. federal courts have overturned several of the eight convictions in whole or in part.

There are five cases are currently ongoing in the commissions -- and another two pending appeal -- including United States v. Khalid Sheikh Mohammed, et al—the prosecution of the detainees alleged to be most responsible for the September 11, 2001 attacks. None of those five cases has yet gone to trial.

On July 9, 2021, Brig. Gen. Mark Martins – the chief prosecutor for the military commissions since March 2009 – announced his retirement. That same day, the New York Times reported that “General Martins submitted his retirement papers … after repeatedly butting heads with Biden administration lawyers over positions his office had taken on the applicable international law and the Convention Against Torture at the Guantánamo court, according to senior government officials with knowledge of the disputes.”

Active Cases and Pending Appeals



Costs
According to the United States Government Accountability Office (GAO), from fiscal years 2012 to 2018 alone the Department of Defense spent $679.6 million on the military commissions. Defense Department officials told GAO that the Department plans to spend almost $1.0 billion more from fiscal year 2019 through at least fiscal year 2023.

Public Access Limitations
The Department of Defense currently facilitates public access to the military commissions, and to information about military commission proceedings, in the following ways:


 * communicating directly with victims and their family members about hearings;


 * enabling selected members of the public to view proceedings in-person;


 * providing five sites in the United States to view proceedings remotely via closed circuit television (CCTV);


 * making information such as court documents available on the Office of Military Commissions’ website.

In practice, there are significant limitations associated with most of these access methods. Through the Fiscal Year 2018 National Defense Authorization Act, Congress required the Government Accountability Office (GAO) to study the feasibility and advisability of expanding access to military commissions proceeding that are open to the public. GAO published its report in February, 2019. Its findings included:

In-person viewing requires travel to Guantanamo, is limited to a narrow set of stakeholders, and is otherwise significantly burdensome in a number of respects.

Travel to Guantanamo is onerous, and logistics once there are difficult. The military commissions courtroom gallery limits attendance to 52 seats. Moreover, GAO notes that “while selected victims and family members and non-government stakeholders are able to view proceedings in-person [at Guantanamo] the vast majority of the general public cannot, due to DOD policy.”

The five CCTV sites are all located on military bases on the East Coast, significantly limiting access for both victims and their family members and the general public.

GAO noted that “victims and their family members are located throughout the world or are concentrated in areas of the United States that are a significant distance from one of these five locations.” Moreover, some victims and family members reported that they or their relatives have been denied access to certain of the sites because, “according to DOD, they did not meet the department’s definition of a victim or family member.”

Many court documents are not timely posted on the Office of Military Commissions website.

By regulation, the Defense Department is supposed to post court documents on the Office of Military Commissions website generally no later than 15 business days after they have been filed in court. However, GAO found that “DOD has generally not met this standard for the timely posting of documents, which substantially limits public access to information about proceedings.” A sampling of over 11,000 filings from a six-month period in 2018 showed that, save for unofficial court transcripts from open hearing, filings were not posted until “almost four months to more than five months past DOD’s timeliness standard.”

An enormous amount of information involved in commission proceedings remains secret, especially information related to post-9/11 U.S. torture.

Defense Department officials told GAO that “unlike most—if not all—federal criminal trials or courts-martial, commissions’ court documents and proceedings regularly involve an unprecedented amount of classified information that cannot be shared with the public. For example, DOD officials told us that a substantial amount of evidence used in the commissions’ proceedings relates to partially-classified activities conducted by intelligence agencies outside the department—such as the Central Intelligence Agency’s former Rendition, Detention, and Interrogation Program.”

Consistent with GAO’s findings, on August 4, 2021, 75 Members of Congress wrote to President Biden urging greater transparency in the military commissions process.

Criticisms
Many observers and stakeholders have expressed the view that the military commissions have in failed. These observers and stakeholders include former senior U.S. government officials and military officers; families of victims of the 9/11 attacks; former military commission prosecutors; prosecutors from the Nuremberg trials following World War II;  academics; Members of Congress; human rights organizations; and others.

In an amicus brief filed with the U.S. Supreme Court on August 20, 2021, September 11th Families for Peaceful Tomorrows – an organization of more than 250 family members of those killed in the attacks of September 11, 2001 – wrote the following:

"Through their collective experience, the pursuit of justice has appeared increasingly quixotic to the members of Peaceful Tomorrows, and they have lost confidence in the fairness and integrity of the Proceedings. As the twentieth anniversary of the September 11th attacks approaches, the members of Peaceful Tomorrows fear that the 9/11 Proceedings will never offer the justice they seek – namely, a fair trial that applies the rule of law to both sides and brings the defendants to justice. They also fear that the subjugation of the defendants’ rights will result in a broader erosion of rights and undermine the historical legitimacy of the 9/11 Proceedings themselves."

Article 1: Guantanamo detainees' medical care
Military spokesmen have routinely asserted that the detainees receive excellent medical care. Documentary film director Michael Moore used these claims as a central meme in his film Sicko to argue that American citizens should receive better medical care. Former detainees on the other hand have described medical care being withheld at the command of interrogators, in order to coerce detainees to confess. Civilian medical professionals who have evaluated detainees and interfaced with Guantanamo's medical care system have criticized the system for lacking the capabilities necessary to diagnose and treat detainees in a manner that meets professional standards of care, especially as detainees age and develop increasingly complex medical conditions. Critics have described the use of the detainees' medical files by interrogators as a violation of medical ethics. Critics have expressed concern that medical personnel violated their professional ethics by aiding in or failing to report the wounds inflicted during interrogations that used prohibited techniques.

Over eighty of the detainees' weights have fallen to life-threatening levels. Many other detainees became obese on the camp's food.

On August 8, 2017, a detainee who remains at Guantanamo filed a motion in federal court requesting a Mixed Medical Commission, which is provided for in Army regulations that implement the Geneva Conventions. The purpose of a Mixed Medical Commission is to independently assess whether a detainee is entitled to medical repatriation. In a sworn declaration provided to the court, a medical expert who has evaluated Mr. al Qahtani stated that he “requires urgent, immediate and potentially life-saving mental health treatment” which Guantanamo is unable to provide “given the constraints of providing care at Guantánamo.” The government opposed Mr. al-Qahtani’s motion. In March 2020, the court ordered the government to provide the Mixed Medical Commission. The government appealed the decision but the appeal was denied. The case is still pending.

On August 5th, 2021, 75 Members of the House of Representatives wrote to President Joe Biden expressing concern that "the medical records of some detainees are not being made available to the detainees or their representatives in a timely fashion, purportedly based on the claim that the withheld records are classified in whole or in part." They emphasized the United States' "responsibility to treat detainees at the Guantanamo prison humanely and make appropriate accommodations to provide for their medical care," including providing complete medical information to detainees and their representatives in a timely fashion.