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The Gitmo 30 and the Impeachment of George W. Bush

June 12, 2014

If conservatives are furious about the Taliban prisoner exchange that freed Sgt. Bowe Bergdahl, the members of Team Bush are absolutely frothing at the mouth. Writing in the Washington Post, former Bush speechwriters Michael Gerson and Marc Thiessen suggested that at best, President Obama does not have the attitude that "we will fight you as long as you fight us" and, at worst, "is surrendering to the Taliban." Echoing the demands of the likes of Allen West and Fox News regular Jeanine Pirro that Obama be impeached, President Bush's last Attorney General Michael Mukasey declared that the "wholesale release of dangerous people" would merit removal from office.

While not surprising from people who have advocating the impeachment of Barack Obama for five years, the statements are nevertheless more than a little ironic. After all, under President Bush over 500 detainees were released from Guantanamo Bay. And when the Supreme Court upheld the habeas corpus rights of the U.S prisoners there in June 2008, the Bush administration and its Republican allies issued dire warnings about the "Gitmo 30" who had already returned "to the kill."
The Gitmo 30 sound bite dates back to the summer of 2007, when the Pentagon released its own study to counter an analysis by Seton Hall professor Mark Denbeaux which questioned the intelligence value of Al Qaeda and Taliban personnel held by the U.S. The New York Times said the DoD assessment "paints a chilling portrait of the detainees," and quoted Pentagon spokesman Jeffrey Gorden on one of its key findings:

"Our reports indicate that at least 30 former Guantanamo detainees have taken part in anti-coalition militant activities after leaving U.S. detention," he said. "Some have been killed in combat in Afghanistan and Pakistan."

That figure quickly became a staple among Republicans in the debate over Guantanamo Bay and the status of the detainees in the wake of the Court's Hamdan decision and the subsequent passage of the Military Commissions Act of 2006 in response to it. With the Senate Judiciary Committee now in Democratic hands, GOP Senators Kyl, Sessions, Graham, Cornyn, and Coburn prominently featured the 30 released detainees in their minority report arguing against the failed Habeas Corpus Restoration Act of 2007:

"At least 30 detainees who have been released from the Guantanamo Bay detention facility have since returned to waging war against the United States and its allies. A dozen released detainees have been killed in battle by U.S. forces, while others have been recaptured."

(It is worth noting, as the Committee's majority report did, that all detainees released from Guantanamo Bay were released not by civilian courts, but by the military's own tribunals and commissions. "Indeed," the report highlighted, "those Guantanamo detainees who have been released since 9/11--discussed at length by critics of this legislation--have been freed by the military following its own process, not by federal judges on habeas review."
Nevertheless, Justice Antonin Scalia in his scathing dissent in the 2008 Boumediene habeas corpus case faithfully reproduced the GOP's Gitmo 30 talking point:

"In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield. See S. Rep. No. 110-90, pt. 7, p. 13 (2007) (Minority Views of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn) (hereinafter Minority Report)...These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection."

The decision, Scalia warned, "will almost certainly cause more Americans to be killed." He added, "The Nation will live to regret what the court has done today."
John Yoo, one of the architects of President Bush's regime of detainee torture, parroted that view. In Yoo's mind, if the Taliban and Al Qaeda prisoners have no legal protection against torture short of "organ failure, impairment of bodily function, or even death," they certainly have no habeas rights, either. Again, the Gitmo 30 explains why:

"Just as there is always the chance of a mistaken detention, there is also the probability that we will release the wrong man. As Justice Antonin Scalia's dissenting opinion notes, at least 30 detainees released from Guantanamo Bay -- with the military, not the courts, making the call -- have returned to Afghanistan and Iraq battlefields."

John McCain, the 2008 Republican presidential nominee, whole-heartedly agreed. As McCain, who called the Boumediene ruling "one of the worst decisions in the history of this country," put it:

"30 of the people who have already been released from Guantanamo Bay have already tried to attack America again."

If what John McCain, Lindsey Graham, John Yoo, Antonin Scalia and virtually the entire right-wing echo chamber said were true, then by their own criteria President George W. Bush should have been impeached. After all, under Bush some 500 detainees were released in exchange for nothing. And according to their own talking points, substantial numbers of these Gitmo graduates returned to the fight against the United States. As Mukasey, who like many legal scholars defended Commander-in-Chief Obama's legal authority to exchange prisoners during wartime, explained his own impeachment test:

"Whether you impeach somebody doesn't depend on whether they violate the law," Mukasey said. "The president can stay within his lawful powers and still commit an impeachable offense. He can pardon anybody he wants. If he decided tomorrow to pardon everybody in the U.S. prison system, that would be lawful, but it would raise serious questions about whether he should continue in office. The same is true of the wholesale release of dangerous people."

By that standard, President Bush should have some serious explaining to do. As ThinkProgress recently documented:

Statistics from the Office of the Director of National Intelligence show that only 6 percent (5 in total) of Guantanamo detainees released during the Obama administration have been assessed to have potentially engaged in militant activities. That compares with a rate of nearly 30 percent under the Bush administration. While these statistics have been criticized as including activities that no one should consider threatening the security of the United States, such as writing op-eds critical of U.S. policy, no one is arguing that they are undercounting those detainees who potentially have committed violent acts upon release.

In fact, the reverse is that case. In 2008, Seton Hall's Denbeaux released a new report ("Justice Scalia, the Department of Defense, and the Perpetuation of an Urban Legend") that put the final nail in the coffin of the right-wing's Gitmo 30 fraud. "At most 12, not 30, detainees 'returned to the fight,'" the report concluded, adding "Of these 12, it is by no means clear that all are properly characterized as having been so engaged since their release." The press release accompanying the June 17 study noted, "The '30' number, however, was corrected in a DoD press release issued in July 2007, and a DoD document submitted to the House Foreign Relations Committee on May 20, 2008 abandons the claim entirely." That House hearing occurred two weeks before Scalia published his stinging Boumediene dissent. That same month, McClatchy completed its own 8 month investigation, one which largely supported Denbeaux' findings. (Recently, CNN's Peter Bergen similarly put all of the government's recidivism claims into doubt, suggesting a figure of 8 to 9 percent would be more accurate.)
All of which means that what conservatives claimed about the Gitmo 30 wasn't true. But if they believe what they're saying about President Obama now, the former Bushies and their right-wing amen corner should have demanded President Bush's impeachment then.


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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