Who are the Guantánamo ‘recidivists’?

McKeon said at the hearing that none of the five released detainees had "returned to the battlefield" and that all five continue to be monitored in Qatar. The Foreign Minister of Qatar, Khaled al-Attiya, said that the five men "are living according to the agreement we signed with the United States." A report on Shahamat, a website run by the Taliban, said that the “Taliban associate” in question was a family member who visited the released prisoner with permission from U.S. and Qatari officials.

Since President Barack Obama has been in office, the United States has released 115 prisoners from Guantánamo Bay. According to the most recent publicly available figures from the office of the Director of National Intelligence (DNI), which looked at 88 of those released men, 6.8 percent of them have “engaged in terrorist or insurgent activities.”  

“We take our obligation to assess the potential threat of detainees seriously … as a result, less than 10 percent of detainees transferred from the Guantánamo Bay detention facility since 2009 are suspected of re-engaging or confirmed to have re-engaged in terrorism,” Defense Department detainee policy spokesman Lt. Col. Myles B. Caggins III told Al Jazeera by email.

Some lawmakers believe any contact with the Taliban or other armed groups is a significant security threat and have used data on recidivism at Guantánamo to block additional transfers. Senators Kelly Ayotte of New Hampshire, John McCain of Arizona, Richard Burr of North Carolina and Lindsey Graham of South Carolina, all Republicans, have introduced legislation to reinstate a ban on transferring Yemeni prisoners, among other restrictions, during Obama's remaining two years in office. This legislation, if enacted, “would effectively block progress toward the goal of closing the Guantánamo Bay detention center," McKeon said at the hearing.

The Obama administration argues that recidivism is down significantly since January 2009, when Obama took office and instituted a policy of “inter-agency review” for Guantánamo detainees. Before a prisoner is cleared for transfer from Guantánamounder the Obama administration, six departments and agencies — including senior officials from the Department of State and the Joint Staff — have to unanimously say the prisoner poses such a low threat that they should be transferred.

When the U.S. has named names in the past, Denbeaux’s research found that information from the Department of Defense was factually incorrect, including even the names of two people who never were detained at Guantanamo at any time.

The working definition of “confirmed” recidivism is a “preponderance of information which identifies a specific former GTMO detainee as directly involved in terrorist or insurgent activities.” Meanwhile, “suspected” activity is based on “plausible but unverified or single-source reporting.” In other words, that information may be based on conjecture, rumor or the political motives of foreign governments or intelligence agencies.

In some cases, former Guantanamo prisoners released by the Obama administration have later faced politically motivated charges. Abdul Aziz Naji, for example, was  repatriated forcibly to his home country, Algeria, and sentenced to prison on the basis of the same charges from which the U.S. authorities had cleared him. Adel Fattough Ali al Gazzar, returned to Egypt after he was cleared for release from Guantanamo in 2011. Arriving in the aftermath of the Arab Spring, he hoped to celebrate a new democracy but was arrested on his arrival at the airport. “He was an easy target for the military court, and with no legal defense, the charges against him stuck,” according to the lawyers representing him.

Does the U.S. count people like this as recidivists? It’s impossible to know because the names or specific details are not disclosed.

The U.S. definitions also make no distinction between insurgent activity directed at a government or military force and violent attacks targeting civilians. "DNI’s numbers are unreliable because they combine terrorism and insurgent activity,” David Remes, a veteran Guantanamo defense attorney, told Al Jazeera in an email. “Under DNI’s approach, anyone who fights against the Iraq government is automatically a terrorist. That makes no sense, and it’s not what Congress asked for. The shoe doesn’t fit.”

Some Guantanamo prisoners have been dangerous, including Said Ali al Shiri, a deputy commander of Al Qaeda in the Arabian Peninsula, who was released under the Bush administration and died in Yemen in 2013 as a result of injuries from a U.S. drone strike.

But experts on Guantanamo detention question the indiscriminate use of the data on recidivism, noting that even the word itself is problematic because it assumes that the prisoners were engaged in unlawful activity prior to their detention. The overwhelming majority of men were never convicted of, let alone charged with, any crimes.

Wells Dixon, a senior staff attorney at the Center for Constitutional Rights, says that the group’s clients released from Guantanamo during the Obama administration have been sent to countries as far and wide as Portugal, Yemen, Palau, Somaliland, Algeria, and Georgia. “Many have gotten married or had children, some are studying for college or postgraduate degrees, and those who couldn’t return to their home countries are learning new languages and adapting to new cultures,” Dixon said. “None is a terrorist or terrorist sympathizer, and none ever was.”