The Empty Battlefield and the Thirteenth Criterion: An Analysis of the Data and Methodology in the Department of Defense's Response to Congressional Request for Justification of the Guantánamo Detentions

27 Pages Posted: 25 Jan 2008

See all articles by Mark Denbeaux

Mark Denbeaux

Seton Hall University, School of Law

Joshua W. Denbeaux

Denbeaux & Denbeaux

Abstract

Due to a Congressional request, the Department of Defense delegated to West Point's Combating Terrorism Center (West Point) the task of responding to the Seton Hall reports. In the process, West Point's report recast the argument from whether a detainee's enemy combatant status is justified by the unclassified summary of evidence in his CSRT, to whether a detainee's unclassified summary meets arbitrary threat levels invented by West Point.

Part One (A) of this report discusses West Point's response to Seton Hall, and reveals the following: 1. West Point does not dispute any of Seton Hall's key findings.

2. To the extent that West Point purports to find defects in Seton Hall's methodology, it actually criticizes the Department of Defense's evidentiary bases for the detention of Guantànamo detainees as enemy combatants.

Part One (B) of this report discusses West Point's confirmation of Seton Hall's findings, and reveals the following:

1. West Point confirms Seton Hall's finding that ninety-five percent (95%) of those detained as enemy combatants were not alleged to have been captured by United States forces.

2. This fact, confirmed by West Point, directly contradicts the executive branch's contention that Guantánamo was populated by individuals who were picked up on the battlefield, fighting American forces, trying to kill American forces.

3. Upon further examination, the data shows that only twenty-one (21) of the 516 detainees in Guantànamo are accused of ever having been on a battlefield.

4. Only one (1) detainee in Guantànamo was alleged to have been captured by United States forces on a battlefield.

5. These new battlefield statistics are corroborated by Department of Defense data revealing that (a) fifty-five percent (55%) of those detained were never accused of committing a hostile act; (b) ninety-two percent (92%) were never accused of being a fighter; and (c) sixty percent (60%) were accused not of being members of al-Qa`ida or the Taliban, but merely of being associated with those groups.

Part Two of this report discusses West Point's methodology and reveals the following:

1. West Point uses a methodology that is not only arbitrary but ultimately circular. It confuses rather than clarifies the issue of whether detainees are properly designated as enemy combatants. West Point deviates from Defense Department data and terminology, justifying such departures - if at all - with anecdotal evidence. West Point employs repetitive data fields and engages in double-counting, piling up statistics in favor of its implicit thesis that the detainees' dangerousness is sufficiently evident from the CSRT unclassified summaries of evidence.

2. While this process results in twelve explicit threat variables, West Point's categories are vast enough to include literally tens of millions of Americans as evidencing threat. The explicit threat variables make sense only when coupled with West Point's implicit thirteenth variable: namely, that a detainee poses some type of threat if he satisfies any one of West Point's twelve variables and he satisfies the criterion of being detained at Guantánamo. Obviously, such reasoning is circular. Nonetheless, West Point applies this reasoning to its analysis of each detainee's CSRT unclassified summary.

3. When all of West Point's faulty categories are stripped away, all that remains are the variables contained within the Government's definition of enemy combatant.

4. Despite erring heavily on the side of over-inclusion, West Point essentially concedes that at least twenty-seven percent (27%) of CSRT unclassified summaries of evidence do not necessarily indicate that a detainee is in fact threatening, as well as that more than one percent (1.16%) evidence no threat whatsoever.

Keywords: Guantanamo, Battle, Battlefields, Dangerous, Dangerousness, Enemy Combatant, Seton Hall, West Point, CSRT, Detainees, Terrorists, war on terror

Suggested Citation

Denbeaux, Mark and Denbeaux, Joshua W., The Empty Battlefield and the Thirteenth Criterion: An Analysis of the Data and Methodology in the Department of Defense's Response to Congressional Request for Justification of the Guantánamo Detentions. Available at SSRN: https://ssrn.com/abstract=1085371 or http://dx.doi.org/10.2139/ssrn.1085371

Mark Denbeaux (Contact Author)

Seton Hall University, School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States

Joshua W. Denbeaux

Denbeaux & Denbeaux ( email )

No Address Available
United States

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