REPORT ON GUANTANAMO DETAINEES
A Profile of 517 Detainees through Analysis of Department of Defense Data
By
Mark Denbeaux
Professor, Seton Hall University School of Law and
Counsel to two Guantanamo detainees
Joshua Denbeaux, Esq.
Denbeaux & Denbeaux
David Gratz, John Gregorek, Matthew Darby, Shana Edwards,
Shane Hartman, Daniel Mann and Helen Skinner
Students, Seton Hall University School of Law

1

THE GUANTANAMO DETAINEES: THE GOVERNMENT’S STORY
Professor Mark Denbeaux* and Joshua Denbeaux*
An interim report
EXECUTIVE SUMMARY
The media and public fascination with who is detained at Guantanamo and why has been
fueled in large measure by the refusal of the Government, on the grounds of national security, to
provide much information about the individuals and the charges against them. The information
available to date has been anecdotal and erratic, drawn largely from interviews with the few
detainees who have been released or from statements or court filings by their attorneys in the
pending habeas corpus proceedings that the Government has not declared “classified.”
This Report is the first effort to provide a more detailed picture of who the Guantanamo
detainees are, how they ended up there, and the purported bases for their enemy combatant
designation. The data in this Report is based entirely upon the United States Government’s own
documents.1 This Report provides a window into the Government’s success detaining only those
that the President has called “the worst of the worst.”
Among the data revealed by this Report:
1.
Fifty-five percent (55%) of the detainees are not determined to have committed any
hostile acts against the United States or its coalition allies.
2.
Only 8% of the detainees were characterized as al Qaeda fighters. Of the remaining
detainees, 40% have no definitive connection with al Qaeda at all and 18% are have no definitive
affiliation with either al Qaeda or the Taliban.
3.
The Government has detained numerous persons based on mere affiliations with a
large number of groups that in fact, are not on the Department of Homeland Security terrorist
watchlist. Moreover, the nexus between such a detainee and such organizations varies considerably.
Eight percent are detained because they are deemed “fighters for;” 30% considered “members of;” a
large majority – 60% -- are detained merely because they are “associated with” a group or groups the
Government asserts are terrorist organizations. For 2% of the prisoners their nexus to any terrorist
group is unidentified.
4.
Only 5% of the detainees were captured by United States forces. 86% of the
detainees were arrested by either Pakistan or the Northern Alliance and turned over to United States
custody.
* The authors are counsel for two detainees in Guantanamo.
1
See, Combatant Status Review Board Letters, Release date January 2005, February 2005, March 2005,
April 2005 and the Final Release available at the Seton Hall Law School library, Newark, NJ.

2

This 86% of the detainees captured by Pakistan or the Northern Alliance were handed over to the
United States at a time in which the United States offered large bounties for capture of suspected
enemies.
5.
Finally, the population of persons deemed not to be enemy combatants – mostly
Uighers – are in fact accused of more serious allegations than a great many persons still deemed to
be enemy combatants.

3

INTRODUCTION
The United States Government detains over 500 individuals at Guantanamo Bay as so-called
“enemy combatants.” In attempting to defend the necessity of the Guantanamo detention camp, the
Government has routinely referred this group as “the worst of the worst” of the Government’s
enemies.2 The Government has detained most these individuals for more than four years; only
approximately 10 have been charged with any crime related to violations of the laws of war. The
rest remain detained based on the Government’s own conclusions, without prospect of a trial or
judicial hearing. During these lengthy detentions, the Government has had sufficient time for the
Government to conclude whether, in fact, these men were enemy combatants and to document its
rationale.
On March 28, 2002, in a Department of Defense briefing, Secretary of Defense Donald
Rumsfeld said:
As has been the case in previous wars, the country that takes prisoners
generally decides that they would prefer them not to go back to the
battlefield. They detain those enemy combatants for the duration of the
conflict. They do so for the very simple reason, which I would have thought
is obvious, namely to keep them from going right back and, in this case,
killing more Americans and conducting more terrorist acts.3
The Report concludes, however, that the large majority of detainees never participated in any
combat against the United States on a battlefield. Therefore, while setting aside the significant legal
and constitutional issues at stake in the Guantanamo litigation presently being considered in the
federal courts, this Report merely addresses the factual basis underlying the public representations
regarding the status of the Guantanamo detainees.
Part I of this Report describes the sources and limitations of the data analyzed here. Part II
describes the “findings” the Government has made. The “findings” in this sense, constitutes the
Government’s determination that the individual in question is an enemy combatant, which is in turn
based on the Government’s classifications of terrorist groups, the asserted connection of the
individual with the purported terrorist groups, as well as the commission of “hostile acts,” if any,
that the Government has determined an individual has committed. Part III then examines the
evidence, including sources for such evidence, upon which the Government has relied in making
these findings. Part IV addresses the continued detention of individuals deemed not to be enemy
2

The Washington Post, in an article dated October 23, 2002 quoted Secretary Rumsfeld as terming the
detainees Athe worst of the worst.@ In an article dated December 22, 2002, the Post quoted Rear Adm. John D.
Stufflebeem, Deputy Director of Operations for the Joint Chiefs of Staff, AThey are bad guys. They are the worst of
the worst, and if let out on the street, they will go back to the proclivity of trying to kill Americans and others.@
Donald Rumsfeld Holds Defense Department Briefing. (2002, March 28). FDCH Political Transcripts. Retrieved
January 10, 2006 from Lexis-Nexis database.
3
Threats and Responses: The Detainees; Some Guantanamo Prisoners Will Be Freed, Rumsfeld Says,
(2002, October 23). The New York Times, p 14. Retrieved February 7, 2006 from Lexis-Nexis database.

4

combatants, comparing the Government’s allegations against such persons to similar or more serious
allegations against persons still deemed to be “enemy combatants.”
I.

THE DATA

The data in this Report are based on written determinations the Government has produced for
detainees it has designated as enemy combatants.4 These written determinations were prepared
following military hearings commenced in 2004, called Combatant Status Review Tribunals,
designed to ascertain whether a detainee should continue to be classified as an “enemy combatant.”
The data are obviously limited.5 The data are framed in the Government’s terms and therefore are
no more precise than the Government’s categories permit. Finally, the charges are anonymous in the
sense that the summaries upon which this interim report relies are not identified by name or ISN for
any of the prisoners. It is therefore not possible at this time to determine which summary applies to
which prisoner.
Within these limitations, however, the data are very powerful because they set forth the best
case for the status of the individuals the Government has processed. The data reviewed are the
documents prepared by the Government containing the evidence upon which the Government relied
in making its decision that these detainees were enemy combatants. The Report assumes that the
information contained in the CSRT Summaries of Evidence is an accurate description of the
evidence relied upon by the Government to conclude that each prisoner is an enemy combatant.
Such summaries were filed by the Government against each individual detainee’s in advance
of the Combatant Status Review Tribunal (CRST) hearing.

4

The files reviewed are available at the Seton Hall Law School library, Newark, NJ.

5

There is other data currently being compiled based on different information. Each prisoner at
Guantanamo who has had summaries of evidence filed against them has had an internal administrative evaluation of
the charges. The process is that a Combatant Status Review Tribunal, or CSRT, has received the charges and
considered them. Some of those enemy detainees who are represented by counsel in pending habeas corpus Federal
District Courts have received (when so ordered by the Federal District Court Judge) the classified and declassified
portion of the CSRT proceedings. The CSRT proceedings are described as CSRT returns. The declassified portion
of those CSRT returns are being reviewed and placed into a companion data base.

5

II.

THE GOVERNMENT’S FINDINGS OF ENEMY COMBATANT STATUS
A.

Structure of the Government’s Findings

As to each detainee, the Government provides what it denominates as a Asummary of
evidence.@ Each summary contains the following sentence:
The United States Government has previously determined that the detainee is
an enemy combatant. This determination is based on information possessed
by the United States that indicates that the detainee is....
[Emphasis supplied]
Since the Government had “previously determined” that each detainee at Guantanamo Bay
was an enemy combatant before the CSRT hearing, the Asummary of evidence@ released by the
Government is not the Government=s allegations against each detainee but a summary of the
Government=s proofs upon which the Government found that each detainee, is in fact, an enemy
combatant.
Each summary of evidence has four numbered paragraphs. The first6 and fourth7 are
jurisdictional. The second8 paragraph states the Government’s definition of “enemy combatant” for
the purpose of the CSRT proceedings.
The third paragraph summarizes the evidence that satisfied the Government that each
detainee is an enemy combatant. Paragraph 3(a) is the Government=s determination of the detainee
relationship with a “defined terrorist organization.”9 Paragraph 3(b) is the place in which
Government’s finds that a detainee has or has not committed “hostile acts” against U.S. or coalition
forces.
Forty five percent of the time the Government concluded that the detainee committed 3(b)
hostile acts against United States or coalition forces. In those cases, there is a paragraph 3(b)
(“¶3(b)”) in the CSRT summary so stating. Fifty five percent of the time, the Government
6

Paragraph 1: “Under the provisions of the Department of the Navy Memorandum, dated 29 July 2004,
Implementation of Combatant Status Review Tribunal Procedures for enemy Combatants Detained at Guantanamo
Bay Naval Base Cuba, a Tribunal has been appointed to review the detainee’s designation as an enemy combatant.”
7
Paragraph 4: “The detainee has the opportunity to contest his determination as an enemy combatant. The
Tribunal will endeavor to arrange for the presence of any reasonably available witnesses or evidence that the
detainee desires to call or introduce to prove that he is not an enemy combatant. The Tribunal President will
determine the reasonable availability of evidence or witnesses.”
8
Paragraph 2: A(A)n Enemy Combatant has been defined as: [A]n individual who was part of or supporting
the Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its
coalition partners. This includes any person who committed a belligerent act or has directly supported hostilities in
aid of enemy forces.@ [Emphasis supplied]
9
Many of the “defined terrorist organizations” referenced in the CSRT summaries of evidence are not
considered terrorist organizations by the Department of Homeland Security. See Infra.

6

concluded that the detainee did not commit such an act and omitted the entire ¶3(b) section from the
CSRT summary. For these detainees whose CSRT summaries include a finding under ¶3(b), the
Government listed its specific findings ‘proving’ hostile acts in a brief series of sub-paragraphs. Of
those CSRT summaries that contain a ¶3(b) “hostile acts” determination, the mean number of subparagraphs is two; that is, for the 55% of detainees the Government has found committed ¶3(b)
“hostile acts” the Government lists, on average two pieces of evidence. Fewer than 2% of all 517
CSRT summaries contained more than five ¶3(b) sub-paragraphs; while the vast majority contained
1, 2 or 3 such ‘proofs’ of hostile acts.
B.

The Definition of an ‘Enemy Combatant’

For the purposes of the Combatant Status Review Tribunal, an “enemy combatant” has been
defined as:
[A]n individual who was part of or supporting the Taliban or al
Qaeda forces, or associated forces that are engaged in hostilities
against the United States or its coalition partners. This includes any
person who committed a belligerent act or has directly supported
hostilities in aid of enemy forces.10
This could be interpreted alternatively as requiring either a combatant be both a
member of prohibited group and engaged in hostilities against the U.S. or coalition forces or
only that a combatant be anyone either a member of prohibited group or engaged in
hostilities to U.S. or coalition forces. Indeed, under this definition, one could be detained for
an undefined level of “support of” groups considered hostile to the United States or its
coalition partners.

C.

Categories of Evidence Supporting Enemy Combatant Designation

10

The definition of Aenemy combatants@ for the purpose of the Guantanamo detainment has evolved over time. In
January 2002, when the first detainees were sent from Pakistan and Afghanistan to Cuba they were termed, as were the
detainees in Ex Parte Quirin, (47 F.Supp. 431) Aunlawful belligerents.@ In Hamdi v. Rumsfeld, (542 U.S. 507) the
Government defined “enemy combatant” far more narrowly as someone who was “’part of or supporting forces hostile to the
United States or coalition partners’ in Afghanistan and who ‘engaged in an armed conflict against the United States’ there.”
Later, in response to Rasul v. Bush (542 U.S. 466), the detainees were called Aenemy combatants.@ (Emphasis supplied)
In February 2004, Secretary Rumsfeld, said, AThe circumstances in which individuals are apprehended on the
battlefield can be ambiguous, as I'm sure people here can understand. This ambiguity is not only the result of the inevitable
disorder of the battlefield; it is an ambiguity created by enemies who violate the laws of war by fighting in civilian clothes, by
carrying multiple identification documentations, by having three, six, eight, in one case 13 different …aliases…. Because of
this ambiguity, even after enemy combatants are detained, it takes time to check stories, to resolve inconsistencies or, in some
cases, even to get the detainee to provide any useful information to help resolve the circumstance.@
In an August 13, 2004 News Briefing, Gordon England, Secretary of the Navy and Secretary Rumsfeld=s designee
for the tribunal process at Guantanamo stated that, AThe definition of an enemy combatant is in the implementing orders,
which have been passed out to everyone. But, in short, it means anyone who is part of supporting the Taliban or al Qaeda
forces or associated forces engaging in hostilities against the United States or our coalition partners.@

7

The Government divides the evidence against detainees into two sections: a ¶3(a)
nexus with prohibited organizations and a ¶3(b) participation in military operations or
commission of hostile acts. Paragraph 3 always begins with the allegations that each
detainee met all the requirements contained in the definition of paragraph two. More often
than not the Government finds that the detainees did not commit the hostile or belligerent
acts.
1.

¶3(a): Enemy Combatant because of Nexus with Prohibited Organization

a.

Definition of Prohibited Organizations

The data reveals that the Government divides a detainee's enemy combatant status into six
distinct categories that describe the terrorist organization with whom the detainee is affiliated.
Figure 1 illustrates the breakdown of each group’s representation by the data:

1.
2.
3.
4.
5.
6.

al Qaeda (32%)
al Qaeda & Taliban (28%)
Taliban (22%)
al Qaeda OR Taliban (7%)
Unidentified Affiliation (10%)
Other (1%)

Fig. 1

3a Group Affiliations
Unidentified/
None alleged
10%

Al Qaeda
OR Taliban
7%

The CSRT Summary of Evidence
provides no way to determine the difference
between “unidentified/none alleged” and
“other” and no explanation for why there are
separate categories for both “al Qaeda and
Taliban” and “al Qaeda or Taliban.”

other
1%
Al Qaeda
32%

Taliban
22%
Al Qaeda &
Taliban
28%

If, after four years of detention, the Government is unable to determine if a detainee is either
al Qaeda or Taliban, then it is reasonable to conclude that the detainee is neither. Under this
assumption, the data reveals that 40% of the detainees are not affiliated with al Qaeda and 18%
percent of the detainees are not affiliated with either al Qaeda or the Taliban.

8

b.

Nexus with the Identified Organization

The Government also describes each prisoner’s nexus to the respective organization:
“fighter for;” “member of;” and “associated with.”
The data explain that there are three main
Nexus Type for All
degrees of connection between the detainee and Fig. 2
11
None
the organization with which he is connected.
Alleged
Detainees are either:
2%
Member
30%

1.
2.
3.

“Fighters for”
“Members of”
“Associated with”

Associated
with
60%

Figure 2 illustrates that of the nexus
Fighter for
type for all the prisoners, regardless of the
8%
group to which they are “connected,” by far
the greatest number of prisoners are identified only as being “associated with” one group or
another. A much smaller percentage – 30% – is identified as “members of.” Only 8% are
classified as “fighters for.”
The definition of “fighters for” would seem to be obvious, while definitions of “members of”
and “associated with” are less clear and could justify a very broad level of attenuation. According to
the Government’s expert on al Qaeda membership, Evan Kohlman, simply being told that one had
been selected as a member would qualify one as a member:
Al-Qaeda leaders could dispatch one of their own — someone who is not top
tier…to recruit someone and to tell them, I have been given a mandate to do
this on behalf of senior al-Qaeda leaders… even though perhaps this
individual has never sworn an official oath and this person has never been to
an al-Quaeda training camp, nor have they actually met, say, Osama bin
Ladin.12
This expansive definition of membership in al Qaeda could thus be applied to anyone who
the Government believed ever spoke to an al Qaeda member. Even under this broad framework, the
Government concluded that a full 60% of the detainees do not have even that minimum level of
contact with an al Qaeda member.

11

While more than 95% of the summaries of the evidence used one of these three categories, approximately
4% used other nexus descriptions. Most notably, 2% used a "supported" descriptor which was re-categorized as
“associated with.” See Appendix C for a full account of re-categorizations of data.
12
US vs. Pachir, Dkt. No., T113.

9

Membership in the Taliban is different and also not clearly defined. According to the
Government, one can be a conscripted (and therefore presumably unwilling) member of the Taliban
and still be an enemy combatant.
Figures 3 and 4 compare the nexus between enemy combatants with Al Qaeda and the
Taliban. In contrast to the “al Qaeda only” category, the “Taliban only” category shows that a
significantly higher percentage of the prisoners are designated “members of” and “fighters for” with
a reduced number being “associated with.”
Fig. 3

Fig. 4

Al Qaeda Nexus Type

Taliban Nexus Type

associated
with
36%

member
34%

associated
with
57%

member
48%

fighter for
9%

fighter for
16%

Seventy eight percent of those prisoners who are identified as being both “al Qaeda and
Taliban” are merely "associated with;" 19% are "members of;" and 3% are "fighters for." (Fig. 5)
When the Government cannot specifically identify a detainee as a member of one or the other, al
Qaeda or the Taliban, the degree of connection attributed to such detainees appears tenuous. (Fig. 6)
"Al Qaeda OR Taliban" Nexus Type

"Al Qaeda & Taliban" Nexus Type

member
21%

member
19%
fighter for
3%

Fig. 5

fighter for
5%

associated
with
78%

The Government’s summary of evidence

10

Fig. 6

associated
with
74%

recognizes that more often than not members of the Taliban are not members of al Qaeda. The
Government categorizes as stand alone al Qaeda or stand alone Taliban more than 54% of the
detainees, and only 28% of the detainees as members of both.
The data provides no explanation for the explicit distinction between those persons identified
as being connected to “al Qaeda and the Taliban” as opposed to “al Qaeda or the Taliban”.
[Emphasis supplied]
2.

¶ 3(b): The Government’s Findings on Detainees’ 3(b) Hostile Acts against the
United States or Coalition Forces

Although the Government’s public position is that these detainees are “the worst of the
worst,” see supra note 2, the data demonstrates that the Government has already concluded that a
majority of those who continue to be detained at Guantanamo have no history of any 3(b) hostile act
against the United States or its allies.
According to the Government, fewer than half of the detainees engaged in 3(b) hostile acts
against the United States or any members of its coalition. As figure 7 depicts, the Government has
concluded that no more than 45% of the detainees have committed some 3(b) hostile act.

3b: Hostile Acts Generally

No
3b:hostile
Act
55%

3b:Hostile
Act
45%

Fig. 7

11

This is true even though the Government’s definition of a 3(b) hostile act is not demanding.
As an example, the following was the evidence that the Government determined was sufficient to
constitute a 3(b) hostile act:
The detainee participated in military operations against the United States and
its coalition partners.
1.
The detainee fled, along with others, when the United States forces
bombed their camp.
2.
The detainee was captured in Pakistan, along with other Uigher
fighters.13
"Al Qaeda OR Taliban" 3b:Hostile
Acts
3b:Hostile
Act
29%

Cross-analyzing the ¶3(a) and ¶3(b) data,
individuals in some groups are less likely to have
committed hostile acts than those in others. In the
group “al Qaeda or Taliban,” for example, 71% of the
detainees have not been found to have committed any
hostile act. (See Fig. 8)

No 3b:
hostile
Act
71%

Fig. 8

Of the “other” detainees in Figure 9, that is, the 18% whose 3(a) is either “Unidentified”,
“None alleged”, “al Qaeda OR Taliban” or “other,” only 24% have been determined to have
committed a 3(b) hostile act. (See Fig 10)
Fig. 9

Others ("Al Qaeda OR Taliban", Unidentified,
None Alleged and other): 3b presence

3a Group Affiliations
Others
18%

3b: Hostile
Act
24%

Al Qaeda
32%

Taliban
22%
3b:No
Hostile Act
76%

Al Qaeda &
Taliban
28%

13

Fig. 10

See CSRT Summary of Evidence available at the Seton Hall Law School library, Newark, NJ [Emphasis

supplied].

12

Thus, the less clear the Government’s characterization of a detainee’s affiliation with a
prohibited group is, the less likely the detainee is to have committed a hostile act. This is notable
because the percentage of detainees with whom the Government cannot clearly connect with a
prohibited group is so large.14
The same pattern holds true when the degree of connection between the detainee and the
affiliated group lessens. Thirty-two percent of the detainees are stand alone al Qaeda. Fifty
seven percent of those detainees have a nexus to al Qaeda described as “associated with.” Of
those 57% whom are merely associated with al Qaeda, 72% of them have not committed 3(b)
hostile acts. (See Fig. 3 and 11) Thus, the data illustrates that not only are the majority of the al
Qaeda detainees merely “associated with” al Qaeda, but the Government concludes that a
substantial percentage of those detainees did not commit 3(b) hostile acts.
Al Qaeda "Associated with"
3b:Hostile Acts
3b:Hostile
Act
28%

No
3b:Hostile
Act
72%

Fig. 11

14

See Fig 1: “3(a) Group Affiliations” supra, p. 7: the sum of “al Qaeda OR Taliban” (7%);
Unidentified/“None alleged” (10%); and “Other” (1%) equals 18%. This is the 18% that is represented as “Others”
in Fig. 9.

13

III.

THE GOVERNMENT’S EVIDENCE THAT THE DETAINEES ARE ENEMY
COMBATANTS

The data permit at least some answers to two questions: How was the evidence of their
enemy combatant status obtained? What evidence does the Government have as to the detainees
commission of 3(b) violations?
A.

Sources of Detainees and Reliability of the Information about Them

Figure 12 explains who captured the detainees. Pakistan was the source of at least 36% of all
detainees, and the Afghanistan Northern Alliance was the source of at least 11% more. The
pervasiveness of Pakistani involvement is made clear in Figure 13 which shows that of the 56%
whose captor is identified, 66% of those detainees were captured by Pakistani Authorities or in
Pakistan. Thus, if 66% of the unknown 44% were derived from Pakistan, the total captured in
Pakistan or by Pakistani Authorities is fully 66%.
Captors known or capture location known

Captors % of Total

Fig. 12

Coalition
forces
3%

Other
2%
Pakistani
Authorities or
in Pakistan
36%

USA
8%

Not stated
44%

Coalition
forces
2%

USA
5%

Northern
Alliance/
Afghan
Authorities
11%

Other
3%

Northern
Alliance/
Afghan
Authorities
20%

Fig. 13

Pakistani
Authorities or
in Pakistan
66%

Since the Government presumably knows which detainees were captured by United States
forces, it is safe to assume that those whose providence is not known were captured by some third
party. The conclusion to be drawn from the Government’s evidence is that 93% of the detainees
were not apprehended by the United States.15 (See Fig. 12) Hopefully, in assessing the enemy
combatant status of such detainees, the Government appropriately addressed the reliability of
information provided by those turning over detainees although the data provides no assurances that
any proper safeguards against mistaken identification existed or were followed.

15

Presuming a fixed 7% of detainees were captured by US or coalition forces, the remaining detainees
whose captor is unknown can be extrapolated to 68% “Pakistani Authorities or in Pakistan”, 21% “Northern
Alliance/Afghan Authorities”, and 4% “other.”

14

The United States promised (and apparently paid) large sums of money for the capture of
persons identified as enemy combatants in Afghanistan and Pakistan. One representative flyer,
distributed in Afghanistan, states:
Get wealth and power beyond your dreams....You can receive millions of
dollars helping the anti-Taliban forces catch al-Qaida and Taliban murders.
This is enough money to take care of your family, your village, your tribe for
the rest of your life. Pay for livestock and doctors and school books and
housing for all your people.16
Bounty hunters or reward-seekers handed people over to American or Northern Alliance
soldiers in the field, often soon after disappearing;17 as a result, there was little opportunity on the
field to verify the story of an individual who presented the detainee in response to the bounty award.
Where that story constitutes the sole basis for an individual’s detention in Guantanamo, there would
be little ability either for the Government to corroborate or a detainee to refute such an allegation.
As shall be seen in consideration of the Uighers, the Government has found detainees to be
enemy combatants based upon the information provided by the bounty hunters. As to the Uighers, at
least, there is no doubt that bounties were paid for the capture and detainment of individuals who
were not enemy combatants.18 The Uigher have yet to be released.
The evidence satisfactory to the Government for some of the detainees is formidable. For
this group, the Government’s evidence portrays a detainee as a powerful, dangerous and
knowledgeable man who enjoyed positions of considerable power within the prohibited
organizations. The evidence against them is concrete and plausible. The evidence provided for most
of the detainees, however, is far less impressive.
The summaries of evidence against a small number of detainees indicate that some of the
prisoners played important roles in al Qaeda. This evidence, on its face, seems reliable. For
instance, the Government found that 11% of the detainees met with Bin Laden. Other examples
include:
¾ A detainee who is alleged to have driven a rocket launcher to combat against
the Northern Alliance.
¾ A detainee who held a high ranking position in the Taliban and who tortured,
16

See Infra., Appendix A.
17 See, e.g. Mahler, Jonathan, The Bush Administration versus Salim Hamdan (2006, Jan. 8), New York
Times, p. 44.
18
White, Josh and Robin Wright. Detainee Cleared for Release Is in Limbo at Guantanamo. (2005,
December 15),Washington Post, p. A09.

15

¾
¾
¾
¾

maimed, and murdered Afghani nationals who were being held in Taliban jails
A detainee who was present and participated in al Qaeda meetings discussing
the September 11th attacks before they occurred.
A detainee who produced al Qaeda propaganda, including the video
commemorating the USS Cole attack.
A detainee who was a senior al Qaeda lieutenant.
11 detainees who swore an oath to Osama Bin Laden.

The previous examples are atypical of the CSRT summaries. There are only a very few
individuals who are actively engaged in any activities for al Qaeda and for the Taliban.
The 11 detainees who swore an oath to Osama Bin Laden are only a tiny fraction of the total
number of the detainees at Guantanamo.
The Taliban is a different story.
The Taliban was a religious state which demanded the most extreme compliance of all of its
citizens and as such controlled all aspects of their lives through pervasive Governmental and
religious operation.19 Under Mullah Omar, there were 11 governors and various ministers who dealt
with such various issues as permission for journalists to travel, over-seeing the dealings between the
Taliban and NGOs for UN aid projects and the like.20 By 1997, all international “aid projects had to
receive clearance not just from the relevant ministry, but also from the ministries of Interior, Public
Health, Police, and the Department of the Promotion of Virtue and Prevention of Vice.”21 There was
a Health Minister, Governor of the State Bank, an Attorney General, an Education Minister, and an
Anti-Drug Control Force.22 Each city had a mayor, chief of police, and senior administrators.23
None of these individuals are at Guantanamo Bay.
The Taliban detainees seem to be people not responsible for actually running the country.
Many of the detainees held at Guantanamo were involved with the Taliban unwillingly as conscripts
or otherwise.
General conscription was the rule, not the exception, in Taliban controlled Afghanistan.24
“All the warlords had used boy soldiers, some as young as 12 years old, and many were orphans
with no hope of having a family, or education, or a job, except soldiering.”25

19
20
21
22
23
24
25

See generally Rashid, A. (2001). Taliban. Yale University Press.
See Id., p. 99.
See Id., p. 114.
See generally Rashid, A. (2001). Taliban. Yale University Press.
Id.
See Id., p100.
See Id., p109.

16

Just as strong evidence proves much, weak evidence suggests more. Examples of evidence
that the Government cited as proof that the detainees were enemy combatants includes the
following:
¾
¾
¾
¾
¾
¾

Associations with unnamed and unidentified individuals and/or organizations;
Associations with organizations, the members of which would be allowed into the
United States by the Department of Homeland Security;
Possession of rifles;
Use of a guest house;
Possession of Casio watches; and
Wearing of olive drab clothing.

The following is an example of the entire record for a detainee who was conscripted into the
Taliban:
a. Detainee is associated with the Taliban
i. The detainee indicates that he was conscripted into the
Taliban.
b. Detainee engaged in hostilities against the US or its coalition
partners.
i. The detainee admits he was a cook’s assistant for Taliban
forces in Narim, Afghanistan under the command of Haji
Mullah Baki.
ii. Detainee fled from Narim to Kabul during the Northern
Alliance attack and surrendered to the Northern Alliance.26
All declassified information supports the conclusion that this detainee remains at
Guantanamo Bay to this date.
Other detainees have been classified as enemy combatants because of their association with
unnamed individuals. A typical example of such evidence is the following:
The detainee is associated with forces that are engaged in hostilities
against the United States and its coalition partners:
1) The detainee voluntarily traveled from Saudi Arabia to
Afghanistan in November 2001.
2) The detainee traveled and shared hotel rooms with an
Afghani.
3) The Afghani the detainee traveled with is a member of the
Taliban Government.
4) The detainee was captured on 10 December 2001 on the

26

See CSRT Summary of Evidence available at the Seton Hall Law School library, Newark, NJ.

17

border of Pakistan and Afghanistan.27
Some of these detainees were found to be enemy combatants based on their association with
identified organizations which themselves are not proscribed by the Department of Homeland
Security from entering the United States. In analyzing the charges against the detainees, the
Combatant Status Review Board identified 72 organizations that are used to evidence links between
the detainees and al Qaeda or the Taliban.
These 72 organizations were compared to the list of Foreign Terrorist Organizations in the
Terrorist Organization Reference Guide of the U.S. Department of Homeland Security, U.S.
Customs and Border Protection and the Office of Border Patrol. This Reference Guide was
published in January of 2004 which was the same year in which the charges were filed against the
detainees.28 According to the Reference Guide, the purpose of the list is Ato provide the Field with a
‘Who=s Who’ in terrorism.”29 Those 74 foreign terrorist organizations are classified in two groups:
36 Adesignated foreign terrorist organizations,@ as designated by the Secretary of State, and 38 Aother
terrorist groups,@ compiled from other sources.
Comparing the Combatant Status Review Board=s list of 72 organizations that evidence the
detainee’s link to al Qaeda and/or the Taliban, only 22% of those organizations are included in the
Terrorist Organization Reference Guide. Further, the Reference Guide describes each organization,
quantifies its strength, locations or areas of operation, and sources of external aid. Based on these
descriptions of the organizations, only 11% of all organizations listed by the Combatant Status
Review Board as proof of links to al Qaeda or the Taliban are identified as having any links to
Qaeda or the Taliban in the Terrorist Organization Reference Guide.
Only 8% of the organizations identified by the Combatant Status Review Board even target
U.S. interests abroad.

27

See CSRT Summary of Evidence available at the Seton Hall Law School library, Newark, NJ.
Terrorist Organization Reference Guide. Retrieved February 6, 2006 from
http://www.mipt.org/pdf/TerroristOrganizationReferenceGuide.pdf
29
It continues: “The main players and organizations are identified so the CBP [Customs and Border
Protection] Officer and BP [Border Protection] Agent can associate what terror groups are from what countries, in
order to better screen and identify potential terrorists.@ Unlike the many other compilations of terrorist organizations
published by the Government since 9/11, including the list of the Office of Foreign Asset Control (OFAC) used to
monitor or block international funds transfers to suspected and known terrorist organizations and their supporters,
the Terrorist Organization Reference Guide identifies the 74 Amain players and organizations@ in terrorism.
28

18

The evidence against 39% of the
detainees rests in part upon the possession of a
Kalashnikov rifle.

Overall - references to rifle, AK-47 or
Kalashnikov

Contains
reference
39%

Possession of a rifle in Afghanistan does
not distinguish a peaceful civilian from any
terrorist. The Kalashnikov culture permeates
both Afghanistan and Pakistan.30

No
reference
61%

Fig. 14

Our economy has been suffering and continues to suffer because of the
situation in Afghanistan. Rampant terrorism as well as the culture of drugs and
guns – that we call the "Kalashnikov Culture" – tearing apart our social and
political fabric – was also a direct legacy of the protracted conflict in
Afghanistan.31
This is recognized not merely by the Pakistani Foreign minister but by American college
students touring Afghanistan. “There is a big Kalashnikov-rifle culture in Afghanistan: …I was
somewhat bemused when I walked into a restaurant this afternoon to find Kalashnikovs hanging in
the place of coats on the rack near the entrance, ….”32

30

Afghanistan is also the world's center for unaccounted weapons; thus, there is no exact count on the
number of weapons in circulation. Arms experts have estimated that here are at least 10 million small arms in the
country. The arms flow has included Soviet weapons funneled into the country during the 1979 invasion, arms from
Pakistan supplied to the Taliban, and arms from Tajikistan that equipped the Northern Alliance. NEA's Statements
on Afghanistan and the Taliban. Retrieved February 6, 2006 from
http://neahin.org/programs/schoolsafety/september11/materials/nmneapos.htm.
31
Pakistan Mission to the United Nations, New York. Retrieved February 6, 2006 from
http://www.un.int/pakistan/12011220.html.
32
Hall, B. (2002 Nov.-Dec.) Letters from Afghanistan. Duke Magazine. Retrieved February 6, 2006, from
www.dukemagazine.duke.edu/dukemag/issues/111202/afghan1.html.

19

The Government treats the presence at a “guest house” as e evidence of being an enemy
combatant. The evidence against 27% of the detainees included their residences while traveling
through Afghanistan and Pakistan.
Stopping at such facilities is common
for all people traveling in the area. In the
region, the term guest house refers simply to a
form of travel accommodation.33 Numerous
travel and tourism agencies, such as Worldview
Tours, South Travels, and Adventure Travel
include overnight stays at local guest houses and
rest houses on their tour package itineraries and
lists of accommodations, which are marketed to
western tourists.34 Guesthouses and rest houses
typically offer budget rates and breakfast
American travel agents advise American tourists
to expect to stay in guest houses in either
country.

Guest & Safe House
Fig. 15

Only guest
house
16%
only safe
house
10%

neither
guest nor
safe house
73%

guest
house and
safe house
1%

In a handful of cases the detainee’s possession of a Casio watch or the wearing olive drab
clothing is cited as evidence that the detainee is an enemy combatant. No basis is given to explain
why such evidence makes the detainee an enemy combatant.

33

A June 7, 2005 article in Business Week referenced an Afghani woman named Mahboba who hopes to
open a chain of women=s guest houses, gaining assistance from participation in a program sponsored by the Business
Council for Peace. In an article published September 25, 2005, New York Times travel reporter, Paul Tough,
described the guest houses that he and his girlfriend stayed in while he explored the budding tourism industry in
Afghanistan. Perman, Staci. Aiding Afghanistan with Style. (2005, June 7). Business Week Online. Retrieved
January 11, 2006 from http://www.businessweek.com/smallbiz/content/jun2005/sb2005067_5111_sb013.htm.
Tough, Paul. The Reawakening. (2005, September 25). New York Times.
34
See, Services Along the Silk Road: Accommodations. Retrieved January 10, 2006, from
http://worldviewtours.com/service/accomodation.htm; Adventure Travel Trek and Tour Operators. Retrieved
January 10, 2006 from http://www.adventure-touroperator.com/main.html; Adventure Holiday in Pakistan: Budget
Hotels and Guesthouses. Retrieved January 10, 2006, from http://www.southtravels.com/asia/pakistan/index.html

20

IV.

CONTINUED DETENTION OF NON-COMBATANTS

The most well recognized group of individuals who were held to be enemy combatants and
for whom summaries of evidence are available are the Uighers35 These individuals are now
recognized to be Chinese Muslims who fled persecution in China to neighboring countries. The
detainees then fled to Pakistan when Afghanistan came under attack by the United States after
September 11, 2001. The Uighers were arrested in Pakistan and turned over to the United States.
At least two dozen Uighurs found in Afghanistan and Pakistan has been detained in
Guantanamo Bay, Cuba. The Government originally determined that these men were enemy
combatants, just as the Government so determined for all of the other detainees. The Government
has now decided that many of the Uighur detainees in Guantanamo Bay are not enemy combatants
and should no longer be detained. They have not yet been released.
The Government has publicly conceded that many of the Uighers were wrongly found to be
enemy combatants. The question is how many more of the detainees were wrongly found to be
enemy combatants. The evidence that satisfied the Government that the Uighers were enemy
combatants parallel’s the evidence against the other detainees --but the evidence against the Uighers
is actually sometimes stronger.
The Uigher evidence parallels the evidence against the other detainees in that they were:
1.
Muslims,
2.
in Afghanistan,
3.
associated with unidentified individuals and/or groups
4.
possessed Kalishnikov rifles
5.
stayed in guest houses
6.
captured in Pakistan
7.
by bounty hunters.
If such evidence is deemed insufficient to detain these persons as enemy combatants, the data
analyzed by this Report would suggest that many other detainees should likewise not be classified as
enemy combatants.
CONCLUSION
35

Uighurs, a Turkic ethnic minority of 8 to 12 million people primarily located in the northwestern region
of China and in some parts of Kyrgyzstan and Kazakhstan, face political and religious oppression at the hands of the
Chinese Government. The Congressional Human Rights Caucus of the United States House of Representatives has
received several briefings on these issues, including the information that the People=s Republic of China Acontinues
to brutally suppress any peaceful political, religious, and cultural activities of Uighurs, and enforce a birth control
policy that compels minority Uighur women to undergo forced abortions and sterilizations.@ (United States
Commission on International Religious Freedom, World Uighur Network) In response to oppression by the Chinese
Government, many Uighurs flee to surrounding countries such as Afghanistan and Pakistan. Wright, Robin. Chinese
Detainees are Men Without a Country. (2005, August 24) Washington Post, p. A01.

21

The detainees have been afforded no meaningful opportunity to test the Government’s
evidence against them. They remain incarcerated.

22

APPENDIX A

Image from http://www.psywar.org/apddetailsdb.php?detail=2002NC02

"Dear countrymen: The al Qaeda terrorists are our enemy. They are the enemy of your independence and
freedom. Come on. Let us find their most secret hiding places. Search them out and inform the intelligence
service of the province and get the big prize." (taken from AP article, http://afgha.com/?af=article&sid=12975

“The reward, about $4,285, would be paid to any citizen who aided in the capture of Taliban
or al-Qaida fighters.”
Text on the back of the imitation banknote is "Dear countrymen: The al-Qaida terrorists are
our enemy. They are the enemy of your independence and freedom. Come on. Let us find their
most secret hiding places. Search them out and inform the intelligence service of the province
and get the big prize."
http://www.psywarrior.com/Herbafghan02.html
23

Image from http://www.psywar.org/apddetailsdb.php?detail=2002AFD029P
AFD29p—leaflet code.
This leaflet shows an unnamed
(http://www.psywarrior.com/Herbafghan02.html)

Taliban

leader

REWARD FOR INFORMATION LEADING TO THE WHEREABOUTS OR CAPTURE OF TALIBAN AND AL QAEDA
LEADERSHIP.
Translation: http://www.psywarrior.com/afghanleaf15.html

24

Afghanistan Leaflets

TF11-RP09-1
FRONT
"Get wealth and power beyond your dreams. Help the Anti-Taliban Forces rid Afghanistan of murderers and
terrorists"
BACK
TEXT ONLY
"You can receive millions of dollars for helping the Anti-Taliban Force catch Al-Qaida and Taliban murderers.
This is enough money to take care of your family, your village, your tribe for the rest of your life. Pay for livestock
and doctors and school books and housing for all your people."

From http://www.psywarrior.com/afghanleaf40.html

25

APPENDIX B
Afghanistan Support Committee
al Birr Foundation
Al Haramain
Al Ighatha
Al Irata
Al Nashiri
Al Wa'ad
Al Wafa
Al-Gama'a al-islamiyya
Algerian Armed Islamic Group
Algerian resistance group
al-Haramayn
Al-Igatha Al-Islamiya, Int'ntl Islamic Relief Org
Al-Islah Reform Party in Yemen
Al-Itiihad al Islami (AIAI)
Ariana Airlines
Armed Islamic Group of Algeria
Bahrain Defense Organization
Chechen rebels
Dawa wa Irshad
East Turkish Islamic Movement
Egyptian Islamic Jihad (EIJ)
Extremist organization linked to Al Qaeda
Fiyadan Islam
Hamas (Islamic Resistance Front)
Harakat-e-Mulavi
HIG
Hizballah
International Islamic Relief Organization (IIRO)
Iraqi National Congress (INC)
Islamic Group Nahzat-Islami
Islamic Movement of Tajikistan
Islamic Movement of Uzbekistan
Islamic Salvation Front
Itihad Islami
JABRI, Wai Al
Jaish-e-mohammad
Jama'at al Tablighi
Jamaat ud Dawa il al Quran al Sunnat (JDQ)
Jamat al Taligh
Jamiat Al lslamiya
Jemaah Ilamiah Mquatilah
Jihadist
Karim Explosive Cell

26

Kuwaiti Joint Relief Committee
Lajanat Dawa Islamiya (LDI)
Lash ar-e-tayyiba
Lashkar-e-Tayyiba(LT)
LIFG
Maktab al Khidman
Mujahadin
Mujahedin Brigade in Bosnia
Mulahadin
Muslims in Sink'Iang Province of China
Nahzat-Islami
Pacha Khan
Revival of Islamic Heritage Society
Salafist group for call and combat
Sami Essid Network
Samoud
Sanabal Charitable Committee
Sharqawi Abdu Ali al-Hajj
small mudafah in Kandahar
Takfir Seven
Takvir Ve Hijra (TVH)
Talibari
Tarik Nafaz Shariati Muhammedi Molakan
Danija
Tunisian Combat Group
Tunisian terrorists
Turkish radical religious groups
Uighers
World Assembly of Muslim Youth
yemeni mujahid

27

APPENDIX C
"Captured by Whom" Notes
“other” includes “Bosnian Authorities”, “Foreign Government”, “Gambia”, “Iranian Authorities”, “Local Pashtun
tribe”, “natural elders of Andokhoy City” and “United Islamic Front for the Salvation of Afghanis”
“Pakistani Authorities” includes “Pakistani Greentown”

"Where Captured" Notes
“Afghanistan” includes “Mazar-e Sharif” and “Tora Bora”
“other” includes “Bosnia”, “fleeing from Shkin firebase”, “Gambia”, “home of al Qaeda financier”, “home of
suspected HIG commander”, “Iran”, “Kashmir”, “Libyan guesthouse”, “Samoud's compound”, “UK, Gambia” and
“while being treated for leg wound”

"Affiliation" Notes
al Qaeda includes “al Qaeda or its network”
al Qaeda & Taliban includes “al Qaeda member taliban associate”, “al Qaeda/Taliban”, “member of al Qaeda &
associated with Taliban”, “member of Taliban and/or associated w/ al Qaeda”, “Taliban and/or al Qaeda”, “Taliban
Fighter and al Qaeda Member” and “taliban member al Qaeda associate”
“other” includes “HIG” and “Uigher”
Unidentified includes “al Qaeda affiliated group”, “enemy combatant”, “forces allied with al Qaeda and Taliban”,
“forces engaged in hostilities against US”, “organization associated w/ and supported al Qaeda”, “terrorist”,
“terrorist organization”, “terrorist organization tied to al Qaeda”, “terrorist organization supported by al Qaeda” and
“various NGOs with al Qaeda & Taliban connections”

"Nexus" Notes
“associated with” includes “affiliated”, “material support”, “supported” and “supporter”
“fighter” for includes “supported and fought for”
“member” includes “member and participated in hostile acts”, “member of or associated with”, “member or ally”,
“operative”, “part of or supported” and “worked for”

28