The Meaning of 'Battlefield': An Analysis of the Government's Representations of 'Battlefield' Capture and 'Recidivism' of the Guantánamo Detainees

Abstract

The Department of Defense has continually relied upon the premise of battlefield capture to justify the indefinite detention of so-called enemy combatants at Guantanamo Bay. The battlefield capture proposition - although proven false in almost all cases - has been an important proposition for the Government, which has used it to frame detainee status as a military question as to which the Department of Defense should be granted considerable deference. Further, just as the Government has characterized detainee's initial captures as on the battlefield, Government officials have repeatedly claimed that ex-detainees have returned to the battlefield, where they have been re-captured or killed.Implicit in the Government's claim that detainees have returned to the battlefield is the notion that those detainees had been on a battlefield prior to their detention in Guantanamo. Revealed by the Department of Defense data, however, is that:*only twenty-one (21) - or four percent (4%) - of 516 Combatant Status Review Tribunal unclassified summaries of the evidence alleged that a detainee had ever been on any battlefield;*only twenty-four (24) - or five percent (5%) - of unclassified summaries alleged that a detainee had been captured by United States forces;*and exactly one (1) of 516 unclassified summaries alleged that a detainee was captured by United States forces on a battlefield.Just as the Government's claims that the Guantanamo detainees were picked up on the battlefield, fighting American forces, trying to kill American forces, do not comport with the Department of Defense's own data, neither do its claims that former detainees have returned to the fight. The Department of Defense has publicly insisted that just short of thirty former Guantanamo detainees have returned to the battlefield, where they have been re-captured or killed, but to date the Department has described at most fifteen (15) possible recidivists, and has identified only seven (7) of these individuals by name. According to the data provided by the Department of Defense:*at least eight (8) of the fifteen (15) individuals alleged by the Government to have returned to the fight are accused of nothing more than speaking critically of the Government's detention policies;*ten (10) of the individuals have neither been re-captured nor killed by anyone;*and of the five (5) individuals who are alleged to have been re-captured or killed, the names of two (2) do not appear on the list of individuals who have at any time been detained at Guantanamo, and the remaining three (3) include one (1) individual who was killed in an apartment complex in Russia by local authorities and one (1) who is not listed among former Guantanamo detainees but who, after his death, has been alleged to have been detained under a different name.Thus, the data provided by the Department of Defense indicates that every public statement made by Department of Defense officials regarding the number of detainees who have been released and thereafter killed or re-captured on the battlefield was false.