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Legal News

: Lawbeat

How "Beyond the Law" series overreaches

By Mark Obbie

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I've been waiting for the McClatchy series "Guantanamo: Beyond the Law" to conclude before commenting on it. But tomorrow I won't be able to blog, so here's my critique after four of the five parts have run. McClatchy explains the genesis of the series:

Early in 2007, as the Bush administration indicated that it intended to release most of the detainees at the prison at the Guantanamo Bay Naval Base in Cuba, McClatchy set out to track down as many of the freed prisoners as possible to help determine who they were, what had happened to them in the prisons the Bush administration set up in Afghanistan and Cuba and what had become of them.

For eight months, reporters Tom Lasseter and Matthew Schofield traveled to 11 countries — from England to Pakistan — and interviewed 66 former detainees. They also interviewed political and military officials in those countries to try to establish the detainees' backgrounds and check their stories.

Lasseter and Schofield also combed through unclassified transcripts of the men's tribunal hearings at Guantanamo, when available, and Lasseter interviewed former White House and Department of Defense officials, former guards and lawyers for prisoners who had them.

Was it worth it? Yes, if you look at the results from a distance: tons of words, huge amounts of original reporting worldwide, a vast Web site, valiant attempts at corroboration, transparency about methods, publication of useful backup documents, videos, and photos. Each of the interviewed detainees is profiled in a database that is part narrative journalism and part catalog comparing the detainees' stories. It's a marvelously rich trove, but I'm not convinced that it proves its sweeping and damning conclusions. Here's the nut of the series:

Of the 66 detainees whom McClatchy interviewed, the evidence indicates that 34 of them, about 52 percent, had connections with militant groups or activities. At least 23 of those 34, however, were Taliban foot soldiers, conscripts, low-level volunteers or adventure-seekers who knew nothing about global terrorism.

Only seven of the 66 were in positions to have had any ties to al Qaida's leadership, and it isn't clear that any of them knew any terrorists of consequence.

If the former detainees whom McClatchy interviewed are any indication — and several former high-ranking U.S. administration and defense officials said in interviews that they are — most of the prisoners at Guantanamo weren't terrorist masterminds but men who were of no intelligence value in the war on terrorism.

So we have anonymous sources vouching for this as a representative sample; we only learn later how large the total population of released detainees is (about 500); and we have a set of assumptions about why this is a story that doesn't completely hold up to scrutiny. First assumption: that lack of intelligence value equals lack of justification for detention. What about preventing future attacks? Next, we're shown the profiles of detainees whom the U.S. released as no longer a threat, and we're supposed to be surprised that they are, indeed, not a threat. Aren't the real questions whether there was a clear reason to capture them at all, and whether the U.S. dawdled in picking the detainees who shouldn't be held? The stories touch on those questions, but not nearly enough. And what proof do the stories offer that the interviewees are telling the truth? I sampled nine of the profiles -- 13 percent of those interviewed, just as the 66 interviewees were about 13 percent of all those released -- and found none with convincing, independently verified proof. The closest one came was where the U.S. determined he was no longer a threat. The others? Believable because he was released early. Lack of proof that he's lying. Local officials weren't aware of him as a known terrorist. And so on. It's admirable, in one sense, because the reporters tried hard to dig into the facts and to humanize their findings. But the stories overreach, in my opinion, rather than sticking to what's known: that the released detainees tell similar stories of innocence and mistreatment, most of which cannot be verified (beyond the reality that the U.S. evidently didn't identify them as a serious threat). Which would then bring us back to what I consider the more defensible and interesting question that's posed but not answered by the stories: If the men were innocent and worthy of release, what can we learn about using smarter arrest criteria and shortening detention times? The stories include other useful, provocative discoveries -- for example, showing the boomerang effect of turning common folk into jihadists by locking them up with real bad guys and then making them hate Americans -- but I don't count today's installment in that category. It's the most legal-oriented part of the series, but mostly is a rehash of what's been written before. Bottom line: A for effort, A-minus for presentation (it took some hunting to understand all the details of the study), C-plus for nailing the story that you say you have.

Full post as published by Lawbeat on June 18, 2008 (boomark / email).