[Guest post by DRJ]

After his Inauguration, President Obama called for the closing of the detention center at the Guantanamo Bay Naval Base — a decision that he has not been able to implement — as well as a comprehensive review of all detainees held there. The comprehensive review was completed in January 2010 but, as reported in the Washington Post, was not released to Congress until last week:

“About 10 percent of the 240 detainees held at Guantanamo Bay, Cuba, when President Obama took office were “leaders, operatives and facilitators involved in plots against the United States,” but the majority were low-level fighters, according to a previously undisclosed government report. About 5 percent of the detainees could not be categorized at all.

The final report by the Guantanamo Review Task Force recommends that 126 of the detainees be transferred either to their homes or to a third country; that 36 be prosecuted in either federal court or a military commission; and that 48 be held indefinitely under the laws of war. A group of 30 Yemenis was approved for release if security conditions in their home country improve.

The report was completed in January but sent to select committees on Capitol Hill just this week. The administration sat on the report in the wake of the attempted bombing of a Detroit-bound airliner on Christmas Day because there was little public or congressional appetite for further discussion of its plan to close the military detention center.”

The New York Times covered the story here. As Thomas Joscelyn points out in the Weekly Standard, the Times and other media have erroneously described detainees (other than the Chinese Uighurs) as eligible for release:

“The Task Force distinguishes between detainee “releases” and “transfers.” Release “is used to mean release from confinement without the need for continuing security measures in the receiving country.” Transfer “is used to mean release from confinement subject to appropriate security measures.” The distinction is an important one.

None of the thirty Yemenis mentioned by the Times were placed in the approved for “release” category. All of them were placed in the approved for “transfer” category.

The chief reason the Task Force placed them in what it calls “conditional” detention is that Yemen cannot provide the “appropriate security measures” that are required to transfer them.

According to the Task Force, the 30 Yemeni detainees “are not approved for repatriation to Yemen at this time, but may be transferred to third countries, or repatriated to Yemen in the future if the current moratorium on transfers to Yemen is lifted and other security conditions are met.”

The Times’s misreporting on these 30 Yemeni detainees is not unique. The press continually gets this wrong. Virtually every time a detainee is transferred from Gitmo, the press reports that he has been “cleared for release.” (To be fair, I have mistakenly used this phrase in the past, although not in the same manner.) The implication of this phrasing is that the detainees in question are either innocent or no longer a threat. Neither implication is true.

The truth is, the Task Force made it clear that no detainees (other than the Uighurs) have been “approved for release.” The 156 total detainees who have been approved for transfer (126 approved for transfer, plus 30 Yemenis in “conditional” detention) are all considered to pose at least some risk.

As the Task Force explained, “It is important to emphasize that a decision to approve a detainee for transfer does not reflect a decision that the detainee poses no threat or no risk of recidivism.”

The head of the Task Force, Matthew Olsen, elaborated on this in an earlier interview with BBC News. “No decision about any of these detainees is without some risk,” Olsen said.

The detainees approved for transfer by the Obama administration are, quite simply, the ones they are willing to assume “some risk” on.”

In the legal world, Assumption of the Risk is a term used in tort law. I guess it has a new meaning now.

— DRJ