Collection ‘management by crisis’: strategic targeting and interrogation at Guantanamo Bay

Abstract

This article examines human intelligence collection in wartime, and offers a methodology to help determine the relative success or failure of the detainee interrogation mission at Guantanamo Bay, Cuba (GTMO). It surveys the relevant background on GTMO, a brief history on interrogations during World War II and Vietnam, and draws comparisons among them to be considered in potential future mass-interrogation missions. Drawing from documentary research and two dozen original interviews, it argues that, to the extent an intelligence mission was one of the purposes of transferring detainees to GTMO, the relevant metric of success is whether collectors were able to obtain more or ‘better’ intelligence from the detainees than they would have been able to in-theater. At the strategic level, then, GTMO’s value to intelligence collectors is to be assessed at the margins, rather than the absolute value of the information educed.

Acknowledgments

The author thanks all the interviewees who were so generous with their time and insights. The views expressed herein are the author’s own, and do not reflect the official policy or position of the Department of Defense, the US Intelligence Community, or any entity of the US Government. This article was written in the author’s personal capacity, and no material covered by the attorney/client privilege was consulted or used in the creation of this document.

Notes

1. George W. Bush, Decision Points 165.

2. Cf. Barack Obama, News Conference by The President, Dec. 22, 2010 (available at http://www.whitehouse.gov/the-press-office/2010/12/22/news-conference-president) (‘my number one priority is keeping the American people safe.’).

3. Interview with GEN George W. Casey, Jr. (May 22, 2012). See also interview with Former Senior DoD Official 1; interview with Daniel Levin (Jan. 3, 2013); interview with John Rizzo (Nov. 1, 2012).

4. Decision Points 165.; telephone interview with Ambassador Pierre Prosper (June 19, 2012). By the end of December 2001, the Coalition was detaining approximately 3,000 fighters in facilities throughout Afghanistan. See Number of Detainees Doubles at Kandahar Airport, CNN.com, Dec. 29, 2001 (available at http://articles.cnn.com/2001–12-29/world/ret.afghan.detainees_1_detainees-qaeda-and-taliban-prisoners-tora-bora?_s = PM:asiapcf).

5. Interview with GEN George W. Casey, Jr. (May 22, 2012); interview with Lawrence Wilkerson (July 25, 2012).

6. Interview with GEN George W. Casey, Jr. (May 22, 2012). General Casey notes this as a general observation, as he was not on the ground in Afghanistan.

7. Interview with LTG Scott Black (Aug. 7, 2012); telephone interview with Ambassador Pierre Prosper (June 19, 2012).

8. Telephone interview with William H. Taft, IV (Oct. 2, 2012).

9. ’The U.S. Navy abbreviation for Naval Station Guantanamo Bay is GTMO. The detention facility is a tenant unit there. For simplicity, GTMO is used to denote that facility …. This use, however, is explicitly not meant to conflate the detention facility with the entire installation.’ House Armed Services Committee Print 112–4, Leaving Guantanamo: Policies, Pressures, and Detainees Returning to the Fight (Jan. 2012) at 5. Unless otherwise specified, this article tracks that usage.

10. George W. Bush, Decision Points 155–56.

11. Cheney: Gitmo Holds “Worst of the Worst”: Former Vice President Says Killing Suspects was Only other Option, Associated Press (June 1, 2009) (available at http://www.msnbc.msn.com/id/31052241/).

12. For an analysis of a third strategic purpose of detaining some suspected terrorists at GTMO, i.e., preventing the detainees from attaining habeas and due process rights, see Adam R. Pearlman, Meaningful Review and Process Due: How Guantanamo Detention is Changing the Battlefield, 6 Harv. Nat. Sec. J. 255 (2015).

13. See n. 148, infra.

14. For an analysis on this point, see Adam R. Pearlman, GQ: The Guantanamo Quagmire, 27 Stan. L. & Pol’y Rev. 101 (2016).

15. If, as some suggest, intelligence collection was an afterthought to GTMO’s detention mission, see text accompanying n. 85 infra, it is arguable that this type of analysis is of minimal import: if the issue central to sending detainees to GTMO was not a question of whether collectors could gain more intelligence from detainees away from the battlefield, but instead the intelligence dimension was merely a matter of exploiting the information the detainees had after it was already determined that they were to be removed from the area of responsibility (AOR) for security reasons, then it cannot be said that better intelligence collection opportunities was part of the strategy for choosing GTMO. Moving forward, however, it will be important for operators and policymakers to consider these issues (detention and interrogation) in tandem so that the full scope of costs and benefits of removing people from the AOR can be properly considered.

16. Note that Department of Defense policy dictated that intelligence value alone did not justify an individual’s detention. See also Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) (plurality op., O’Connor, J.).

17. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (detention is a ‘fundamental … incident to war’).

18. See Guantanamo Detainees, Department of Defense slides (Feb. 4, 2004 draft) (disclosed by Department of Defense Office of Freedom of Information, Jan. 24, 2010 to Judicial Watch, per Christopher J. Farrell FOIA request of May 17, 2005).

19. Interview with William Lietzau (July 26, 2012); interview with Former Senior DoD Official 2. Future Judge Advocate General of the Army LTG Scott Black says the Army’s JAGs were not consulted on the screening criteria for who would be transferred to GTMO, nor were the Army’s senior legal advisers in-theater. Interview with LTG Scott Black (Aug. 7, 2012). Department of Defense civilian attorneys and lawyers from the Intelligence Community were involved, however. The Army is the US military’s Executive Agent for prisoners of war.

20. Interview with Former Senior DoD Official 2.

21. Id.

22. Early on, however, SOUTHCOM would ‘take anybody who got off the plane,’ and could not directly contest CENTCOM’s decision to send someone to GTMO. Interview with LTG Ronald Burgess (July 27, 2012).

23. See also interview with Former Senior DoD Official 1; interview with Former Senior DoD Official 2.

24. See, e.g., Most Guantanamo Detainees are Innocent: Ex-Bush Official, Assoc. Press (Mar. 19, 2009) (available at http://www.cbc.ca/news/world/most-guantanamo-detainees-are-innocent-ex-bush-official-1.804550). Note that concepts of ‘innocence,’ as opposed to ‘guilt,’ connote matters for criminal law; although the terms are often used by opponents of detention at Guantanamo Bay, that a detainee may be innocent of any criminal wrongdoing is irrelevant to the government’s detention authority under the laws of war. See also Hamdan v. U.S., 696 F.3d 1238, 1244 (D.C. Cir. 2012) (‘When [Hamdan’s] sentence ended . . . the war against al Qaeda had not ended. Therefore, the United States may have continued to detain Hamdan as an enemy combatant.’).

25. See Mark Denbeaux, et al., A Profile of 517 Detainees through Analysis of Department of Defense Data (Feb. 8, 2006) (available at http://law.shu.edu/publications/guantanamoReports/guantanamo_report_final_2_08_06.pdf). Note that the author of this study is a lawyer who represents GTMO detainees.

26. As to arguments that the government’s decision to transfer or release certain detainees is somehow a concession that they were unlawfully detained, see infra, note 63.

27. As of the end of the Obama Administration, 41 detainees remain at Guantanamo Bay; 5 of whom had been ‘approved for transfer.’ Note that transfer or release of detainees prior to the cessation of hostilities is a political decision reserved to the Executive. See, e.g., Kiyemba v. Obama (Kiyemba III), 605 F.3d 1046 (D.C. Cir. 2010) (per curiam). Being approved, or ‘cleared’ for transfer is not to say the government could no longer lawfully detain the individual under the law of armed conflict. This is true even of those detainees convicted of war crimes who have served their criminal sentences. See Hamdan v. United States (Hamdan II), 696 F.3d 1238, 1244 (D.C. Cir. 2012). Depending on political, diplomatic, and security considerations, a detainee’s transfer could be to his home country or a third country.

28. Interview with Senior DIA Official 1.

29. Interview with Lawrence Morris (Oct. 17, 2012).

30. Interview with John Bellinger (Dec. 19, 2012).

31. Id.

32. Id.

33. Telephone interview with William H. Taft, IV (Oct. 2, 2012).

34. Interview with John Bellinger (Dec. 19, 2012).

35. During the Bush Administration, this process was coordinated by Joint Task Force Guantanamo’s Office for the Administrative Review of the Detention of Enemy Combatants. See Nat Moger, OARDEC Conducts ARBs and CSRTs, Joint Task Force Guantanamo Pub. Aff. Office (June 6, 2008), available at http://www.jtfgtmo.southcom.mil/storyarchive/2008/June/060908-oardec.html.

36. See Exec. Order No. 13,492, 74 Fed. Reg. 4897 (Jan. 22, 2009). President Obama continued to insist throughout his presidency that closing Guantanamo is a policy priority of his Administration.

37. See Final Report, Guantanamo Review Task Force (Task Force report), Jan. 22, 2010.

38. See Exec. Order No. 13,567, 76 Fed. Reg. 13,277 (Mar. 7, 2011).

39. See also http://www.prs.mil/AboutthePRB.aspx.

40. Interview with Senior Navy Intelligence Officer; interview with Senior State Department Official 1.

41. Interview with Ambassador Daniel Fried (June 6, 2012).

42. Interview with Former Senior State Department Official.

43. Id.

44. Interview with Daniel Levin (Jan. 3, 2013).

45. Id. However, detainees whose former brothers-in-arms remain at-large may nevertheless have important knowledge regarding the background of people who may later become important. See interview with Senior Navy Intelligence Officer.

46. Interview with Former Senior USG Official 1; interview with Michael Chertoff (Mar. 11, 2013).

47. Interview with Senior Navy Intelligence Officer.

48. Leaving Guantanamo: Policies, Pressures, and Detainees Returning to the Fight, HASC Committee Print 112–4 (Jan. 2012).

49. Interview with Ambassador Daniel Fried (June 6, 2012).

50. Id. Lietzau instead suggests ending the war is the better method for closing GTMO—as long as the war is ongoing, he says, detainees must be held somewhere. Focusing on transfers while the armed conflict is ongoing has been counterproductive to the broader war effort and tends to conflate statistics with moral matters. Interview with William Lietzau (July 26, 2012).

51. Interview with Daniel Levin (Jan. 3, 2013).

52. See, e.g., Fact Sheet: Former Guantanamo Detainee Terrorism Trends, Defense Intelligence Agency (April 7, 2009), available at http://media.miamiherald.com/smedia/2009/05/27/20/recidivists.source.prod_affiliate.56.pdf.

53. More Gitmo Prisoners Return to Terrorism, JudicialWatch, Mar. 29, 2010 (available at http://www.judicialwatch.org/blog/2010/mar/more-gitmo-prisoners-return-terrorism); Thomas Joscelyn, Guantanamo Recidivism Rate Climbs Higher, The Long War Journal, Sept. 14, 2011 (available at http://www.longwarjournal.org/archives/2011/09/guantanamo_recidivis.php).

54. Office of the Director of National Intelligence, Summary of the Reengagement of Detainees Formerly Held at Guantanamo Bay, Cuba (Sept 14, 2016) (available at https://www.odni.gov/index.php/newsroom/reports-and-publications/214-reports-publications-2016/1414-summary-of-the-reengagement-of-detainees-formerly-held-at-guantanamo-bay-cuba-2016). A further 45 detainees were transferred between the publication of this report and January 19, 2017. A comparison of the September 2016 report with the September 2015 report reveals that former detainees are suspected or confirmed of reengaging as a constant rate (30%) during the course of that year. Office of the Director of National Intelligence, Summary of the Reengagement of Detainees Formerly Held at Guantanamo Bay, Cuba (Sept. 3, 2015) (available at http://www.odni.gov/index.php/newsroom/reports-and-publications/207-reports-publications-2015/1248-summary-of-the-reengagement-of-detainees-formerly-held-at-guantanamo-bay,-cuba-sept-2015).

55. Interview with Sandra Hodgkinson (Aug. 21, 2012).

56. Richard K. Betts, Analysis, War, and Decision: Why Intelligence Failures are Inevitable, 31 World Politics 61 (Oct. 1978).

57. See, e.g., Leaving Guantanamo: Policies, Pressures, and Detainees Returning to the Fight, HASC Committee Print 112–4 (Jan. 2012).

58. George W. Bush, Address to Joint Session of Congress (Sept. 20, 2001) (available at http://www.americanrhetoric.com/speeches/gwbush911jointsessionspeech.htm).

59. Authorization for Use of Military Force, Pub. L. No. 107–40, 115 Stat. 224 (2001).

60. See also Interview with GEN George W. Casey, Jr. (May 22, 2012).

61. Interview with Ambassador Daniel Fried (June 6, 2012). Ambassador Fried compares it to projections of fear about Soviet capabilities during the Cold War. Fear is also a consistent theme for Jack Goldsmith, who writes that fear ‘created enormous pressure to stretch the law to its limits … ‘ Jack Goldsmith, The Terror Presidency 11.

62. See, e.g., interview with LTG Ronald Burgess (July 27, 2012).

63. Interview with Ambassador Daniel Fried (June 6, 2012). Lietzau reminds, however, that POWs are not subjected to dangerousness assessments – for example, cooks and drivers are detainable. Federal courts have agreed, holding that the individualized threat a specific detainee may pose is not a factor in determining whether he has been lawfully detained. See also Awad v. Obama, 608 F.3d 1 (D.C. Cir. 2010).

64. Interview with Alberto Mora (Aug. 3, 2012).

65. See Joseph Felter and Jarret Brachman, CTC Report: An Assessment of 516 Combatant Status Review Tribunal (CSRT) Unclassified Summaries (July 25, 2007). The CTC study responds to one authored by Seton Hall University professor and detainee lawyer Mark Denbeaux, which argues that the majority of CSRT-designated enemy combatants were wrongfully accused. See Mark Denbeaux, et al., A Profile of 517 Detainees through Analysis of Department of Defense Data, (Feb. 8, 2006), available at http://law.shu.edu/publications/guantanamoReports/guantanamo_report_final_2_08_06.pdf.

66. Factors for this category were attending a terrorist training camp, receiving training in combat arms ‘other than or in addition to rifles/small arms,’ serving as a fighter, and engaging in hostilities.

67. This category included those who performed supporting roles for terrorist groups, trained in small arms including AK-47, expressed a commitment to violent jihad, or were affiliated with groups known to be threats, such as al-Qaeda or the Taliban.

68. The weakest threat category, associated threats included those with ‘definitive’ connections to al-Qaeda, those who stayed at guesthouses or engaged in extensive travel, and detainees who carried large sums of cash.

69. Felter and Brachman at 4.

70. Id. at 13.

71. Id. at 7. See also Bensayah v. Obama, 610 F.3d 718, 726 (D.C. Cir. 2010) (We disagree with Bensayah's broad contention that two pieces of evidence, each unreliable when viewed alone, cannot ever corroborate each other.’).

72. See, e.g., Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010).

73. See also Pearlman, Meaningful Review, 6 Harv. Nat. Sec. J. at 273–278.

74. But cf. interview with Senior State Department Official 1 (noting that it is unknowable the extent to which detention prevented attacks, just as it is possible that detention spawned them).

75. Leaving Guantanamo: Policies, Pressures, and Detainees Returning to the Fight, HASC Committee Print 112–4 (Jan. 2012); interview with John Rizzo (Nov. 1, 2012). But see interview with Ambassador Daniel Fried (June 6, 2012) (remarking that it is ludicrous to believe that the Bush Administration bowed to any external pressures to release GTMO detainees known to be dangerous); interview with Lawrence Morris (Oct. 17, 2012).

76. See Exec. Order No. 13,492, supra n. 45. President Obama continued to insist that closing Guantanamo was a policy priority of his Administration. See, e.g., John O. Brennan, Remarks of John O. Brennan – As Prepared for Delivery, Program on Law and Security, Harvard Law School (Sept. 16, 2011), available at http://www.lawfareblog.com/2011/09/john-brennans-remarks-at-hls-brookings-conference/ (‘The Obama Administration has made its views on this clear. The prison at Guantánamo Bay undermines our national security, and our nation will be more secure the day when that prison is finally and responsibly closed.’); Barack Obama, Press Conference by the President, Dec. 18, 2015 (available at https://www.whitehouse.gov/the-press-office/2015/12/18/press-conference-president-121815).

77. Interview with William Lietzau (July 26, 2012) (emphasis added). See also Robert K. Ackerman, Defense HUMINT Needs Technology, Too, Signal Online, Oct. 2006 (available at http://www.afcea.org/content/?q=node/1202).

78. See John Yoo, War by Other Means ix.

79. Gary D. Speer, Posture Statement of Major General Gary D. Speer, United States Army, Acting Commander in Chief United States Southern Command, Before the 107th Congress Senate Armed Services Committee, Mar. 5, 2002 (available at http://www.dod.mil/dodgc/olc/docs/test02–03-05Speer.rtf).

80. Id.

81. Id.

82. Id.; interview with GEN George W. Casey, Jr. (May 22, 2012).

83. Interview with LTG Ronald Burgess (July 27, 2012); interview with Lawrence Wilkerson (July 25, 2012).

84. Interview with LTG Ronald Burgess (July 27, 2012).

85. Interview with GEN George W. Casey, Jr. (May 22, 2012).

86. Interview with LTG Ronald Burgess (July 27, 2012).

87. It should be noted that in the context of the present conflict, the war fighter-centered definition may be under-inclusive. In the sense that there is now unprecedented overlap between the missions of the military, intelligence and law enforcement communities, modern US counterterrorism efforts involve all elements of national power in a way that earlier wars did not. This is especially true in the realm of detention policy and interrogation strategy. This section therefore continues by examining the rather rapid evolution of counterterrorism interrogation between 9/11 and today, including the successes and shortcomings of military, intelligence, and law enforcement interrogations held at GTMO.

88. See Steven M. Kleinman, The History of MIS-Y: U.S. Strategic Interrogation During World War II. JMIC Thesis, August 2002, at 32–36. (Hereinafter “Kleinman Thesis”).

89. See Robert A. Fein, “Experience and Research in Educing Information: A Brief History,” in Educing Information: Interrogation: Science and Art. Intelligence Science Board, December 2006, at xi.

90. Kleinman Theisis at 45, 88–95.

91. See id. at 55–69, 86.

92. Thomas X. Hammes, Insurgency: Modern Warfare Evolves into a Fourth Generation, Strategic Forum 214, January 2005 at 5.

93. See Andrade, Dale and James H. Willbanks, CORDS/Phoenix: Counterinsurgency Lessons from Vietnam for the Future, Military Review (March-April 2006); David P. Shoemaker, Unveiling Charlie: U.S. Interrogators’ Creative Successes Against Insurgents,’ in Interrogation: World War II, Vietnam, and Iraq at 117.

94. See Steven M. Kleinmnan, Barriers to Success: Critical Challenges in Developing a New Educing Information Paradigm, in Educing Information: Interrogation: Science and Art, Intelligence Science Board, December 2006, at 264.

95. For further discussion concerning US detention operations generally (i.e., an examination not focused on interrogation) during World War II and Vietnam, see Cheryl Benard, et al., The Battle Behind the Wire: U.S. Prisoner and Detainee Operations from World War II to Iraq at 52, RAND National Defense Research Institute, 2011 (available at http://www.rand.org/content/dam/rand/pubs/monographs/2011/RAND_MG934.pdf).

96. See Kleinman Thesis at 18.

97. See e.g., James A. Stone, “Interrogation of Japanese POWs in World War II: U.S. Response to a Formidable Challenge,” in Interrogation: World War II, Vietnam, and Iraq, at 19. See also Kleinman Thesis at 42, 47–50.

98. Kleinman Thesis at 50.

99. See Stone at 34.

100. See Shoemaker, n. 97, supra, at 121–26.

101. Harry G. Summers, Jr., A Strategic Perception of the Vietnam War, Parameters, 13 (June 1983) at 1–3.

102. Id. at 2.

103. Speer, n. 99, supra.

104. Telephone interview with Michael Newton (June 13, 2012).

105. Interview with Senior DIA Official 2.

106. Interview with LTG Ronald Burgess (July 27, 2012).

107. Id. By the time he left SOUTHCOM in May 2003 to become the Director of Intelligence (J-2) for the Joint Staff, no interagency disagreement at GTMO had ever been elevated to Burgess. Id.

108. Interview with Lawrence Wilkerson (July 25, 2012).

109. Interview with LTG Ronald Burgess (July 27, 2012).

110. Id.; interview with John Rizzo (Nov. 1, 2012).

111. Interview with Lawrence Wilkerson (July 25, 2012). Accord interview with John Rizzo (Nov. 1, 2012).

112. Interview with LTG Ronald Burgess (July 27, 2012). Disagreements between the units were to be arbitrated by SOUTHCOM. Id.

113. Interview with Alberto Mora (Aug. 2, 2012).

114. Interview with LTG Ronald Burgess (July 27, 2012).

115. Interview with John Rizzo (Nov. 1, 2012).

116. See Statement of Glenn A. Fine, Inspector General, U.S. Department of Justice before the House Committee on Foreign Affairs, Subcommittee on International Organizations, Human Rights, and Oversight: The Role of the FBI at Guantanamo Bay (Fine testimony), pp 3, 8. June 4, 2008. Note that the study of the CIA’s Rendition, Detention, and Interrogation program undertaken by the Senate Select Committee on Intelligence describes certain techniques reportedly used on some detainees who were transferred to GTMO, but it does not address JTF-GTMO interrogations. See generally U.S. Senate Select Committee on Intelligence Study of the CIA’s Detention and

Interrogation Program at 337–38, 444 n. 2491 (noting that CIA detention and interrogation operations differed from military interrogations done at GTMO).

117. Interview with LTG Ronald Burgess (July 27, 2012).

118. See Fine testimony at 7, 10.

119. Interview with John Rizzo (Nov. 1, 2011).

120. See Neil A. Lewis, Guantanamo Detainees Deliver Intelligence Gains, N.Y. Times, Mar. 20, 2004.

121. Id. Note that at the time of this article in March 2004, Lewis observed that more than 100 GTMO detainees had already been released.

122. See Fine testimony at 5.

123. Cf. id. at 6, 7, 11.

124. Id. at 9–10.

125. Interview with LTG Ronald Burgess (July 27, 2012).

126. William J. Haynes II, General Counsel, Action Memo: Counter-Resistence Techniques, Nov. 27, 2002 (available at http://www.defense.gov/news/Jun2004/d20040622doc5.pdf). Secretary Rumsfeld approved the techniques on December 2, 2002. On January 15, 2003, he directed that the Working Group on Detainee Interrogations in the Global War on Terrorism be created to review the authorized interrogation methods. The Secretary then issued revised criteria on April 16, 2003. See Memorandum for the Commander, US Southern Command, Secretary of Defense, Apr. 16, 2003 (available at http://www.defense.gov/news/Jun2004/d20040622doc9.pdf).

127. Interview with LTG Ronald Burgess (July 27, 2012).

128. Thomas Joscelyn, The Value of Guantanamo’s Intelligence, Weekly Standard, Mar. 3, 2011 (available at http://www.weeklystandard.com/blogs/value-guantanamo-s-intelligence_552817.html).

129. Neil A. Lewis, Guantanamo Detainees Deliver Intelligence Gains, N.Y. Times, Mar. 20, 2004.

130. Id.

131. Interview with RADM James McPherson (June 26, 2012).

132. Id. Even so, it is noteworthy that, after the Supreme Court decided GTMO detainees had a constitutional right to challenge the legality of their detention in federal courts, some of that detainee-provided intelligence became key evidence supporting determinations that they were more likely than not part of or substantial supporters of al-Qaeda, the Taliban, or associated forces.

133. Interview with Senior DIA Official 2. See also interview with Sandra Hodgkinson (Aug. 21, 2012); interview with Lawrence Wilkerson (July 25, 2012).

134. Interview with Lawrence Wilkerson (July 25, 2012).

135. Id.

136. Interview with Sandra Hodgkinson (Aug. 21, 2012).

137. Id. Hodgkinson distinguished the efforts of the CIA, which has “more effective ways” of collecting intelligence than the Department of Defense.

138. Interview with Senior Navy Intelligence Officer. See also Jeffrey H. Norwitz, Defining Success at Guantanamo: By What Measure?, Military Review, July-Aug. 2005, 79, 79 (“Even 2 years after capture, actionable intelligence about terrorist networks and those who are undermining stability in Afghanistan is still forthcoming at Guantanamo.”).

139. Interview with Senior Intelligence Official 2. The official notes that such hasty releases would have been especially likely during facility transitions in Afghanistan.

140. Interview with LTG Ronald Burgess (July 27, 2012).

141. Id.

142. Interview with RADM James McPherson (June 26, 2012).

143. Id.; interview with DoD Foreign Affairs Specialist.

144. Interview with LTG Ronald Burgess (July 27, 2012).

145. Interview with Intelligence Official 1. Cf. National Counterterrorism Center, Annex of Statistical Information to 2008 Department of State Country Reports on Terrorism, Mar. 20, 2009 (in a section entitled “Considerations for Interpreting the Data,” NCTC staff note, “Tallying attack data necessarily involves relying exclusively on frequently incomplete and ambiguous information ….” A similar caveat must accompany any statistics developed pursuant to the methods suggested here.).

146. To be sure, the former issue does relate to the screening question discussed earlier, but getting into the details of detainee-specific reporting distracts from the big-picture issues this article examines. The latter issue is better left for analysts to study and operators to act upon.

147. A researcher would be advised also to account for certain operationally and legally relevant events that might have impacted the intelligence collection mission at GTMO (in addition to the route passage of time). These include, for example, the initial reduction of collectors in 2004, see text accompanying note 146, supra, and the Supreme Court’s holding in 2008 that GTMO detainees could challenge the legality of their detention in federal court. See Boumediene v. Bush, 553 U.S. 723 (2008).

148. If one were to conduct a study into which interrogation tactics were most successful, additional coding for this model could include accounting for reported methods used to question the detainees.

149. Further information could be gleaned from a regression analysis accounting for how a detainee’s age at capture, nationality, and length of time in the AOR prior to capture, each influenced his intelligence value. Note that levels of sophistication or training in counterinterrogation techniques would also have to be accounted for.

150. Distinguishing between agencies is important to accounting for the type of intelligence that would interest different audiences within the government. For example, DIA might be more interested in tactical intelligence as it relates to in-theater military operations, but the State Department or FBI would have little use for such reporting, and instead focus their analytical resources on reporting more relevant to diplomatic or law enforcement issues.

151. Interview with Senior Intelligence Official 2.

152. ODNI Summary, n. 58, supra.

153. Army Field Manual 2–22.3, Human Intelligence Collector Operations (previously FM 34–52).

154. Fine testimony at 4.

155. Exec. Order No. 13,491, 74 Fed. Reg. 4893 (Jan. 22, 2009). Two further orders, EOs 13492 and 13493, established the Guantanamo Bay Review Task Force and ordered a review of detention policy operations generally. Exec. Order No. 13,492, 74 Fed. Reg. 4897 (Jan. 22, 2009); Exec. Order No. 13,493, 74 Fed. Reg. 4901 (Jan. 22, 2009). The Guantanamo Review Task Force issued its report regarding the legal dispositions of the detainees remaining at GTMO on January 22, 2010.

156. See Anne E. Kornblut, New Unit to Question Key Terror Suspects, Wash. Post, August 24, 2009.

157. Id.

158. See e.g., Spy Files Shed Light on Nazi Saboteurs in U.S., CBS News (Apr. 4, 2011) (available at http://www.cbsnews.com/2100–202_162–20050482.html). See also Ex Parte Quirin, 317 U.S. 1 (1942).