Second Report on the Guantanamo Detainees: Inter- and Intra-Departmental Disagreements about Who is our Enemy

Abstract

The Department of Defense identified 72 terrorist organizations in the Combatant Status Review Tribunals (CSRT). The Defense Department considers affiliation with any one of these groups sufficient to establish that a Guantanamo detainee is an enemy combatant for the purpose of his continued detention. This report refers to these 72 terrorist organizations as the Defense Department List. Fifty-two of those groups, 72% of the total, are not on either the Patriot Act Terrorist Exclusion List or on two separate State Department Designated and Other Foreign Terrorist Organizations lists (jointly referred to as the State Department Other Lists). These lists are compiled for the purposes of enabling the government to protect our borders from terrorists entering the United States. Twelve of the organizations, 18% of the total, are on either the State Department Other Lists or the Patriot Act Terrorist Exclusion List, but not on both. Members of 64 of the 72 groups the Defense Department believes to be terrorist organizations, 89% of the total, would be permitted in the United States by either the State Department Other Lists or the Patriot Act Terrorist Exclusion List. In addition to being inconsistent with the Defense Department list, the State Department lists are inconsistent with each other. That is, 46 organizations that the State Department represented to Congress as terrorist organizations on the State Department Other Lists do not appear on the Patriot Act Terrorist Exclusion List. The inconsistency between the State Department Other Lists and the Patriot Act Terrorist Exclusion List raises serious questions about the security of our borders. The Defense Department justifies holding many detainees indefinitely due to their nexus with a group that neither the State Department Other Lists nor the Patriot Act Terrorist Exclusion List recognizes as a terrorist organization. This inconsistency leads to one of two equally alarming conclusions: either the State Department is allowing persons who are members of terrorist groups into the country or the Defense Department bases the continuing detention of the alleged enemy combatants on a false premise.