TD Blog Interview with Joshua Denbeaux

In February and March of this year, a pair of ground-breaking reports pertaining to detainees at Guantanamo Bay were issued by a team from Seton Hall University Law School in Newark, New Jersey, led by the tandem of attorneys Joshua Denbeaux of the law firm of Denbeaux & Denbeaux of Westwood, New Jersey and his father, Seton Hall Law Professor Mark Denbeaux, with assistance by a number of Seton Hall law students (David Gratz, John Gregorek, Matthew Darby, Shana Edwards, Shane Hartman, Daniel Mann and Helen Skinner). For the first time, the reports laid out a detailed analysis and evaluation of data recently made public as a result of recent litigations concerning Guantanamo Bay detainees, including the government’s accusations and the government’s recounting of the circumstances of capture.
The first report analyzed publicly released combatant status review tribunal (CSRT) documents reflecting data pertaining to the 517 men still detained at Guantanamo Bay Cuba pursuant to the “war on terror”, and concluded that contrary to many statements by the Pentagon and Bush Administration that the detainees were “captured on the battlefield” and represented “the worst of the worst,” the data shows, among other things, that 55% of detainees are not determined to have committed any hostile acts against the United States or coalition allies, only 5% of detainees were captured by the American military (86% were captured by either Pakistan or the Northern Alliance and then turned over to American custody at a time when the United States offered large bounties for capture of suspected enemies), only 8% of detainees are characterized as al Qaeda fighters, with 40% of the remaining detainees having no definitive connection with al Qaeda and 18% with no definitive affiliation with either al Qaeda or the Taliban, and 60% are held because they are “associated with” groups the government asserts are terrorist organizations (though only 8% are identified as “fighters for” any group.)
The second report analyzed the 72 organizations with which the detainees are purportedly affiliated as identified by the Department of Defense (DOD) in the CSRT data, and cross-checks those groups against the State Department Designated and Other Foreign Terrorist Organizations Lists and the Patriot Act Terrorist Exclusion List (intended to be used to exclude terrorists from the United States). The report notes that fully 52 of these groups on the DOD list, or 72%, are not on either of the other two lists, while an additional 18% of the groups are on one of the two lists, but not both, and hence, members of 64 of the 72 groups would be admitted to the U.S. based on one or the other list, though membership in these groups is used as a basis to continue holding Guantanamo detainees.
On March 29, 2006, I had the privilege of speaking to Joshua Denbeaux, one of the lead authors of the Seton Hall studies, by telephone. What follows are my interview notes, as corrected where appropriate by Mr. Denbeaux.
The Talking Dog My obligatory first question is “where were you on September 11th?”
Joshua Denbeaux: I was in court, preparing to select a jury in Middlesex County, [New Brunswick], New Jersey. In court that morning, there were rumors from people in the courthouse that something major was happening. Some people’s cel-phones were working– I recall one of my clients spoke to their aunt, who was watching television in Kingston. There was fear in the courthouse. I went to the clerk’s office, asking to be excused for the day so that I could leave ahead of a very long trip back to my office, and the clerk told me that everyone was going to be released, because no jurors were responding to calls: there was only one television in the courthouse, in the jury assembly area, and all the jurors were glued to the television set.
The Talking Dog Your reports indicate that you represent two detainees at Guanatanamo. I understand they are Tunisian nationals. Can you briefly tell me their names, what they are charged with, and whether you’ve met them? Let me know if you can’t answer because the question or answer might impinge on something privileged or classified that you can’t discuss.
Joshua Denbeaux: My clients are Rafik Alhami and Mohammed Abdul Rahman. We are counsel on a habeas corpus petition now pending in federal court in Washington, D.C., whose status is that it has been stayed by the District of Columbia Circuit, pending the outcome of appeals including a number of habeas petitions. As to what my clients are charged with, or accused of having done, because I am privy to both classified and non-classified information about that, I don’t think I can answer that. They are not currently scheduled to be tried by the military commissions. I have met my clients during one extended vistit to Guantanamo. I traveled down to Guantanamo with my father, and we met our clients in the meeting rooms they have set up, and we did indeed turn over our notes to be mailed to Virginia pursuant to the security protocols they have.
The Talking Dog Speaking of classified, I have read a criticism of your report by a Pentagon spokesman who contends it is inaccurate because you didn’t rely on classified information… how do you respond to that?
Joshua Denbeaux: Our reports are based on the publicly released, declassified CSRT summaries. I respond to such a “criticism” by asking what is the government’s point? Is there classified information that rebuts the publicly available declassified information? The government has never said that our analysis is wrong. Either admit that we are correct, or show us how we are wrong. Claiming that we haven’t seen classified information is utterly irrelevant, and if this changes anything, then the Government has an even bigger credibility problem than it already does.
The Talking Dog Let me ask you about extrapolations in your reports. Let me start with something in your executive summary, where you state that only 5% of detainees were captured by U.S. forces, but in your report’s body, there is a statement that the government’s evidence is that 93% of detainees were not apprehended by the United States… what’s the basis of that discrepancy (and is it that 2% were captured by US coalition members)?
Joshua Denbeaux: Given the limitations of the data as provided, there is no option but to extrapolate. We certainly have no reason not to believe that the provenance of those of unknown capture, for example, is very different, percentage-wise, from those whose provenance is disclosed, and we so indicate in the report. By the way, let me give full credit to the students who assisted my father and I in preparation of the reports; they put in a tremendous effort and did a lot of heavy lifting. As to your specific question, yes, it appears that the additional 2% were captured by the British or other coalition allies, as opposed to Pakistan or the Northern Alliance who captured the vast majority of detainees.
The Talking Dog Your report notes that only ten detainees have been charged with violations of the laws of war. Is there any reason, based on what we know, to legitimately conclude they are the “worst of the worst”, let alone that they justify holding over 500 people not charged with anything?
Joshua Denbeaux: Based on the way the data is released, it is impossible to tie the particular allegations to particular detainees. Our report makes pretty clear that the government’s own disclosure shows that only 45% of the detainees are accused of any hostile act at all. Thus, the other 55% are, by definition, not “the worst of the worst”. What’s interesting is that the Government often speaks of holding these men so that they are not “returned to the battlefield”. Well, for most of these guys, if they were “returned” to the battlefield, it would be the first time they were ever there! This “captured on the battlefield” allegation made by the President and others, as shown by the data, is just not true for most of the detainees. Indeed, at this point, it appears that repetition of this allegation is intentionally and knowingly false… could it be invented by our government to justify the continuation of Guantanamo?
Our second report makes clear what the basis for holding most of these people is association with groups that supposedly have ties to terrorism. And yet, it is clear that the Defense Department is not relying on the lists of terrorist organizations that we use to keep people out of the United States in order to generate the lists of groups that it deems a sufficient basis to hold the Guantanamo detainees. I am reasonably certain that our analysis is the first time that these lists have been cross-checked against each other– including by the government itself!
The Talking Dog Are you aware of any other public sources besides your own report (and possibly the National Journal) that have done the kind of analysis you and the Seton Hall team did with respect to this data?
Joshua Denbeaux: While I have nothing but admiration and respect for the National Journal and Murray Waas, our report is the only fully comprehensive evaluation of the CSRT data of its kind that I am aware of.
The Talking Dog Is there anything else my readers or the American public need to know about this subject that I haven’t asked you, or do you have any other comments?
Joshua Denbeaux: Sure. There are three things, three possibilities based on what we know as a result of our analyses of the publicly released data.
The first possibility for why the list of terrorist organizations relied upon by the Pentagon to hold these detainees does not match either the State Department or Patriot Act (Homeland Security) terrorist exclusion lists is because the DOD is simply making it up– it has decided that association with groups makes someone per se an enemy combatant, and there are 164 detainees so “associated” with groups not on either State or Patriot Act lists. One can say it “smells like” the DOD interrogated all of the Guantanamo detainees, established what organizations these men were “associated with”, and then, after the fact, determined that these were “terrorist organizations”; this is certainly consistent with the large discrepency between DOD’s list and the others– indeed, only 20 of the organizations on DOD’s lists are on either of State’s or Patriot Act lists; 52 out of 72 organizations don’t show up on either State or Patriot Act list, and yet, are deemed sufficient basis to hold Guantanamo detainees indefinitely.
The second possibility is also troubling: maybe the Defense Department is right. Maybe these really are terrorist organizations. In that case, what is the State Department doing maintaining lists that allow these people into the country? As far as we know, members of the 52 organizations on DOD’s list, but not on either of the other two lists, can enter the country. Are we allowing terrorists to freely come in?
The third possibility is that both sets of lists are screwed up– that we are both holding innocent people at Guantanamo, and the government is not fully holding up our security by admitting people into the country that it shouldn’t be.
The Talking Dog: That was incredibly informative, and please accept my thanks on behalf of myself and all of our readers.
Readers may also find talking dog blog interviews with attorneys Rick Wilson,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing other Guantanamo detainees) and with attorneys Donna Newman and Andrew Patel (representing “unlawful combatant” Jose Padilila), and with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, to be of interest.