"We've already had instances where we know that people who have been released from our detention have gone back and have become combatants again," Rep. Porter Goss, R-Fla, chairman of the House Permanent Select Committee on Intelligence told United Press International recently.
"It's the military Willie Horton," he said, referring to the notorious killed, who absconded on furlough and a year later pistol whipped a man and raped his fiancee.
"I do in fact have specific cases," he said, when pressed for further details, but declined to say more.
The Willie Horton case became a major issue in the 1988 presidential campaign, and the case of the released detainees threatens likewise this week to become a political issue as congress returns in the aftermath of the U.S. Supreme Court ruling that the Guantanamo Bay detainees have a right to file writs of habeas corpus.
A defense official confirmed to UPI that several such cases had involved Afghans released from Guantanamo.
"At least five detainees released from Guantanamo have returned to the (Afghan) battlefield," said the defense official, who requested anonymity.
When asked how U.S. authorities could know, the official declined to comment, "That gets into intel stuff. I can't go there," the official said.
Mark Jacobson, a former senior official at the Pentagon who helped put together the policy for detainees at Guantanamo, explained to UPI that every detainee is fingerprinted and photographed.
"We build up pretty extensive biometrics on these guys," he said. "There are a lot of different ways we could know that someone we'd captured or killed had already been in our custody."
In the absence of further details, it is unclear how many of the five -- about 10 percent of the 57 Afghans released from Guantanamo -- have fallen back into the hands of U.S. forces, leaving open the possibility that more might be at large.
"I would hope our intel is good enough that we'd know if someone we'd released was back on the battlefield," said Jacobson, now a visiting scholar at Ohio State University.
At least one of the men released appears to have been a Taliban field commander. Media reports from Afghanistan in April said that Mullah Shahzada, released in spring last year, had been captured or killed. Shahzada appears to have become active again almost immediately following his release. In May 2003, he -- or possibly another Afghan with the same name -- was interviewed in Quetta, Pakistan by a U.S. newspaper. The report, which described him as a "former fighter," did not mention that he had been detained in Guantanamo.
Until recently, the U.S. military made decisions about who should be released from Guantanamo on an ad hoc basis, considering, officials say, whether they have intelligence that might still be of use, and whether they continued to pose a threat. Jacobson described the process as "pretty meticulous."
"Even if five got through," he said, "that's still an 'A' grade."
The Defense official also defended the review process. "It's very thorough, but it's not foolproof," he said. "We err on the side of caution, but mistakes are going to be made."
The official said that the process was complicated by the lack of system of personal identity or other records in Afghanistan.
"These people don't have driver's licenses," he told UPI. "They don't even have birth certificates. Some of them are trained in deception and counter-interrogation techniques.
"One guy had 13 aliases."
Earlier this year, facing a Supreme Court challenge to the legality of the Guantanamo detentions, the Pentagon began work on a more structured review process for detainees, under which an annual hearing would consider whether they still posed a threat. The initial plans for the new system were unveiled June 23 by Navy Secretary Gordon England.
England declined to comment on whether detainees released under the old, ad hoc review system had taken up arms again, but said it was one pitfall the new process he was in charge of was designed to avoid. "Obviously, we don't want to release someone who's going to come back and attack America or our allies," he said in an interview.
But the Supreme Court ruling last week, and the prospect that the Pentagon will now face an avalanche of litigation from the five hundred-plus detainees still held at Guantanamo has left plans for the new system in limbo.
England said it was too soon to tell what might happen "The department is still reviewing the (Supreme Court) decision," he said. "We just don't know what we're going to do yet."
Ruth Wedgwood, a staunch defender of the administration's legal strategies for detention said that the court's ruling had "left everything quite confused." She said that although the judges had made it clear some form of review was necessary, they had given officials no real guidance on how it should work.
Whatever arrangements were eventually made to fulfill the legal duty to provide due process, she said "they are not going to be as simple as the Supreme Court seems to think."
The Defense official said that the Pentagon might use the new review process, both to reduce the numbers they are holding before they have to go through the arduous process of preparing to defend multiple habeas corpus writs, and to show the courts that there is already some due process in the continuing, open-ended detentions at Guantanamo.
Experts familiar with the review procedures agreed. "The process of sorting through the detainees will be put into overdrive," predicted Elisa C. Massimino, director of the Washington office of Human Rights First.
Eugene R. Fidell of the National Institute for Military Justice, added that he expected the numbers of those detained to drop precipitately "to below 200" before the courts began to consider habeas writs. "The floodgates problem has been overstated," he said.
Jacobson said that it would have been wiser to treat the detainees captured in Afghanistan as prisoners of war "straight off the bat" -- as some on the administration had urged -- rather than leaving them in the legally murky situation of unlawful combatants. "That way," he pointed out, "the only question is 'When is the conflict over?' The courts don't get involved."
"It makes much more sense to do Article Five hearings on the front end than get into complex review procedures afterwards," agreed Massimino -- referring to the process mandated by article five of the Geneva Convention, whereby those captured on the battlefield are screened to check they really are combatants and not bystanders or displaced persons caught up in the fighting.
Other commentators agreed that the administration had only itself to blame for any difficulties it now found itself in.
The National Journal's Stuart Taylor said that the administration had provoked the court "by refusing to give even the minimal hearings (to detainees) most agree are required under international law..."
The court, he went, was effectively "being asked to put its imprimatur on violations of international law that had caused world wide outrage."
Goss said that he would hold intelligence committee hearings on detention issues later this month.
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