Who’s afraid of shutting down Gitmo?

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President Obama reiterated in his press conference today that the detention facility at Guantanamo Bay is a terrible idea, counterproductive to U.S. national security, and should be closed. He also said that he will continue to pursue doing so. That prompted the now familiar chorus of liberal Obama critics to denounce the president for “failing to keep his promise to close Gitmo.” As if it’s that simple.

Two days after his inauguration, President Barack Obama signed three executive orders, the first of which called for the closure within one year of the George W. Bush-created prison at Guantanamo Bay. Five months later, on May 20th, Congress choked off that possibility, by doing what Congress does: they passed a law.

H.R. 2346, introduced as Senate Amendment 1136 by Republican Senator Mitch McConnell, had the following purpose:

To limit the release of detainees at Guantanamo Bay, Cuba, pending a report on the prisoner population at the detention facility at Guantanamo Bay.

It passed by a vote of 92 to 3, with four Senators not voting: Democrats Ted Kennedy, Robert Byrd, Jay Rockefeller and Republican Orrin Hatch. Every other Democrat in the Senate voted for it, including liberal stalwarts like Bernie Sanders, Sherrod Brown, and Russ Feingold. In fact, the only Democrats who DIDN’T vote to keep Gitmo open were Dick Durbin, President Obama’s fellow Illinoian, Patrick Leahy of Vermont and good old Roland Burris, the much-derided fill-in Senator, also from Illinois. Looks like the president’s home state stood with him. Too bad the following Democrats did not stand with the president on Gitmo:

Akaka (D-HI)
Baucus (D-MT)
Bayh (D-IN)
Begich (D-AK)
Bennet (D-CO)
Bingaman (D-NM)
Boxer (D-CA)
Brown (D-OH)
Cantwell (D-WA)
Cardin (D-MD)
Carper (D-DE)
Casey (D-PA)
Conrad (D-ND)
Dodd (D-CT)
Dorgan (D-ND)
Feingold (D-WI)
Feinstein (D-CA)
Gillibrand (D-NY)
Hagan (D-NC)
Harkin (D-IA)
Inouye (D-HI)
Johnson (D-SD)
Kaufman (D-DE)
Kerry (D-MA)
Klobuchar (D-MN)
Kohl (D-WI)
Landrieu (D-LA)
Lautenberg (D-NJ)
Levin (D-MI)
Lieberman (ID-CT)
Lincoln (D-AR)
McCaskill (D-MO)
Menendez (D-NJ)
Merkley (D-OR)
Mikulski (D-MD)
Murray (D-WA)
Nelson (D-FL)
Nelson (D-NE)
Pryor (D-AR)
Reed (D-RI)
Reid (D-NV)
Sanders (I-VT)
Schumer (D-NY)
Shaheen (D-NH)
Specter (D-PA)
Stabenow (D-MI)
Tester (D-MT)
Udall (D-CO)
Udall (D-NM)
Warner (D-VA)
Webb (D-VA)
Whitehouse (D-RI)
Wyden (D-OR)

That same day, the Senate voted to attach an amendment to H.R. 2346, which mainly regulated credit card fees, that read as follows:

SA 1132. Mr. INHOFE (for himself, Mr. BARRASSO, Mr. BROWNBACK, Mr. DEMINT, Mr. JOHANNS, Mr. ROBERTS, Mr. THUNE, Mr. VITTER, Mr. SESSIONS, Mr. COBURN, Mrs. HUTCHISON, Mr. BENNETT, Mr. HATCH, and Mr. ENZI) submitted an amendment intended to be proposed by him to the bill H.R. 2346, making supplemental appropriations for the fiscal year ending September 30, 2009, and for other purposes; which was ordered to lie on the table; as follows:

At the appropriate place, insert the following:

Sec. __. None of the funds appropriated or otherwise made available to any department or agency of the United States Government by this Act or any other Act may be obligated or expended for any of the following purposes:

(1) To transfer any detainee of the United States housed at Naval Station, Guantanamo Bay, Cuba, to any facility in the United States or its territories.

(2) To construct, improve, modify, or otherwise enhance any facility in the United States or its territories for the purpose of housing any detainee described in paragraph (1).

(3) To house or otherwise incarcerate any detainee described in paragraph (1) in the United States or its territories.

And just to make sure it was clear that Congress meant that no part of the government could take action to bring Guantanamo detainees ashore, Shelby, Imhofe, Inouye, Brownback, Enzi and Roberts added this, which was good through September 30, 2009:

Strike section 202 and insert the following:

Sec. 202. (a)(1) None of the funds appropriated or otherwise made available by this Act or any prior Act may be used to transfer, release, or incarcerate any individual who was detained as of May 19, 2009, at Naval Station, Guantanamo Bay, Cuba, to or within the United States.

(2) In this subsection, the term “United States” means the several States and the District of Columbia.

(b) The amount appropriated or otherwise made available by title II for the Department of Justice for general administration under the heading “SALARIES AND EXPENSES” is hereby reduced by $30,000,000.

(c) The amount appropriated or otherwise made available by title III under the heading “Operation and Maintenance, Defense-Wide” under paragraph (3) is hereby reduced by $50,000,000.

In other words, sorry Eric Holder. Your hands are tied, too.

And in case that wasn’t clear enough, Richard Shelby added yet another amendment:

On page 7, line 25 after the “.” insert the following: “SEC. 203 None of the funds appropriated in this or any other Act shall be used to carry out any of the Department of Justice responsibilities required by Executive Orders 13491, 13492 and 13493.”

What are those executive orders? Well … 13491 orders detainees at Guantanamo Bay to be treated according to the Geneva Conventions and assures that the U.S. abides by international law. 13492 orders Gitmo closed. And E.O. 13493 creates a task force headed by Eric Holder to deal with the disposition of Gitmo detainees. The cumulative effect of these three executive orders would have been to close Gitmo and move the detainees elsewhere, either by trying them, deporting them, or incarcerating them somewhere — possibly in the U.S. None of that happened, because of that Senate vote … which by the way was 94 to 0.

Which Democrats voted for Senate Amendment 1140? ALL OF THEM — including the vaunted liberals — with the exception of Teddy Kennedy, Robert Byrd, and Jay Rockefellar, none of whom voted that day.

Here is what Durbin had to say on the floor of the Senate about Mitch McConnell’s amendment, which was supported almost unanimously by Democrats — liberal and blue dog alike:

AMENDMENT NO. 1136

Mr. DURBIN. Mr. President, one of the amendments which is being discussed and has been filed by the minority leader, Senator McConnell of Kentucky, relates to detainees at Guantanamo. I am hoping we will have an opportunity to debate this amendment because I think it is an important amendment, and I hope colleagues will pay close attention to it. It is not an amendment which is casual or inconsequential. It is an amendment which could have a very negative impact on our treatment of detainees who are guilty of crimes or involved in terrorist activities.

It is interesting that Senator McConnell has brought this amendment before the body to be considered. It appears that when President Bush–the previous President–announced that he was closing Guantanamo, we didn’t have this rush to the microphones on the Republican side of the aisle and objecting. In fact, I don’t recall any objection from their side of the aisle when President Bush made that recommendation.

It is also interesting that during the years the Guantanamo Detention Facility has been open the requests that are being made now of this President were not made of the previous President. All the suggestions that perhaps there would be release of detainees from Guantanamo who may cause harm in some part of the world, those suggestions weren’t made under the previous President.

Literally hundreds of detainees at Guantanamo have been released by President Bush in the previous administration. It was found that many of them were either brought in with no charges that could be proved or once investigation of the evidence was commenced, they learned there was nothing that could be established. They were released and returned to countries of origin and other places around the world–hundreds of them in that case. I don’t recall a single Republican Senator, or any Senator for that matter, coming to the floor and objecting to the release of those hundreds of detainees from Guantanamo by President Bush. It happened. They did not object.

But now there is a new President and a new approach by the Republican side of the Senate. Senator McConnell has come forward with a proposal that calls on the President–not the Attorney General but the President–to provide detailed information about every detainee at Guantanamo–information which has never been requested by previous Senators and the previous administration.

I will make an exception to what I just said. At one point, when the Bush administration was asked for the names of the detainees and their countries of origin, the Bush administration objected and said it could compromise national security to release their

[Page: S5682]names. That was the only request made. It was denied.
Now come the Republicans, with the new Obama administration, with a brandnew outlook, and they want to know everything about the detainees. It is a long amendment. It goes on for five pages and a lot of detail here about the detainees at Guantanamo. Basic information–name and country of origin, and it goes on for quite a while. Most of it, I think, may be salutary and wouldn’t have a negative impact, but there is one paragraph in particular which I think is dangerous. It is a request for information in the McConnell amendment of the President of the United States, and let me read what the request is. It is a request for “a current summary of the evidence, intelligence, and information used to justify the detention of each detainee listed under paragraph (1) at Naval Station Guantanamo Bay.”

Paragraph (1) refers to all the detainees in custody at Guantanamo. So what Senator McConnell is asking for is a summary of the evidence, intelligence, and information justifying detention. This could compromise a prosecution of a detainee. It could put us in a position where someone who truly is dangerous cannot be prosecuted because of this request for information by Senator McConnell.

Senator McConnell wants, I guess, 535 Members of Congress to have a chance to read through the evidence, intelligence, and information about each detainee. Well, some of that may be classified; some may not. Even the information that is classified may leak, with 535 Members of Congress and other staff people. Do we want to run the risk of jeopardizing the prosecution of someone who is a danger to the United States to satisfy the curiosity of a Senator? I don’t think so.

Secondly, once this has been presented, if Senator McConnell has his way, then there is a very real possibility that should someone–a known terrorist–be brought to the United States, or any other place for trial under the laws of the United States, they could, in fact, ask–as they do in ordinary criminal cases–for the presentation of all the evidence the State has against them, which would include this document, which would include not only the evidence, intelligence, and information, but quite possibly the work product of the prosecutors who are holding this detainee.

We could not only compromise his prosecution, we could end up with a “not guilty” of someone who is dangerous to the United States simply to satisfy the curiosity of a Senator who files this amendment. I think that goes too far. I can’t believe that it is in the best interests of the safety of this country for us to allow this McConnell amendment to pass and to require the President to provide to Senator McConnell a current summary of the evidence, intelligence, and information used to justify the detention of each detainee.

Why? Why in the world would we want to compromise any attempt at prosecution? We don’t want to do that. Men and women–career prosecutors–are currently reviewing each of these cases to determine whether we can go forward with prosecution. The record of the previous administration is not very good when it comes to prosecuting these detainees. President Obama has said he wants to put that behind us and to deal with these people on an honest basis.

I have listened to the statements that have been made on the floor by the Republican Senators who have come forward with amendments. Many of them clearly want to keep Guantanamo open forever. They talk about a $200 million state-of-the-art facility in glowing terms. Well, I have been there, and I have seen it. I have seen the men and women in uniform who toil there each day under tough climate conditions. It gets pretty hot down there. I know they are working hard for their country. But I think they know, and we know, that continuing Guantanamo is going to continue to deteriorate the reputation of the United States around the world–not because of what our soldiers and sailors and military have done there, but simply because it has become a symbol that is being used by terrorists around the world to recruit enemies against the United States.

That is why President Bush called for the closure of Guantanamo, and that is why President Obama has done the same thing. Yet the Republican platform now seems to be “Guantanamo forever.” They have built this platform on fear–fear that somehow this administration would be so negligent that it would release terrorists into the United States, into the communities and neighborhoods of this country. Nothing could be further from the truth. Not this President, or any President I can recall of either political party, would ever find themselves in a position to jeopardize the safety of this country by releasing detainees who would be dangerous to the United States.

But this fear mongering is what has been the basis for their position on the other side of the aisle when it comes to the security of the United States.

Those who are arguing that we cannot safely hold a terrorist in the prisons of America–that is the argument; don’t let a detainee from Guantanamo ever be considered for a jail or prison of the United States–have overlooked the obvious. Currently, we have 208 inmates in the Bureau of Prison facilities of the United States who are sentenced to international terrorism–208 already there; 66 U.S. citizens, 142 non-U.S. citizens. In addition to that, 139

inmates in our U.S. Bureau of Prisons have been sentenced for domestic terrorism; 137 U.S. citizens and 2 non-U.S. citizens. Do the math. That is 347 people who have been convicted of terrorism, international and domestic, currently being held in the prisons of the United States.

Do I feel less safe in Illinois–in Springfield or Chicago–because of that? No, because I know they are being held by professionals in facilities that have a record of safely holding these individuals.

The other side suggests if we put one of these Guantanamo detainees in a U.S. prison, they will be on the street in a heartbeat. I can’t imagine that. That is not going to happen. The President wouldn’t let it happen. Our Bureau of Prisons wouldn’t let that happen either.

Then there is this other aspect. If we decided at some point to prosecute a Guantanamo detainee in the courts of the United States for a crime, some of the language that has been brought to us by the Republicans would make that impossible. You know why. Well, one amendment by the Senator from Georgia, Mr. Chambliss, would not allow the Attorney General to bring that person from Guantanamo Naval Station into the continental United States. The amendment prohibits that. We couldn’t even bring them in to try them for a crime, couldn’t even bring them in to hold them accountable in a court of law for terrorism.

Another amendment says we can’t hold these prisoners in any U.S. prison facility. How do we try a person in the United States and not at least, when they are not in trial, hold them in some prison facility? That is just common sense. The person is dangerous. They are, of course, detained in a secure facility during the course of the trial. Some of the Republican amendments would make that impossible.

I don’t understand what they are headed to. I think they want to keep this Guantanamo facility, as we have known it, open forever, without resolution of the people who are there. That is fundamentally unfair. I have said on the floor of the Senate before, and it is worth repeating, that there are people being held at Guantanamo for whom there are no charges. I know one person in particular who is being represented by a pro bono lawyer in Chicago. This man has been held for 7 years at Guantanamo. Originally, he was from Gaza in the Middle East. There was a report that he was dangerous. With that report, he was arrested, taken to Guantanamo, and held. After 6 years, he was notified there were no charges against him; he would be free to go if he could figure out where to go. And that has been the problem. He has been waiting for a year for permission to return to Gaza. He is now 26 years old. From the age of 19 to 26 he has been sitting in Guantanamo. Guantanamo forever? For him, it must feel like forever.

It is about time that we mete out justice. For those being held unfairly, they should be released. For those where there are no charges, we should acknowledge that and return them as quickly and safely as possible. For those who are a danger to the United States, we should continue to detain

[Page: S5683]them so they never pose a hazard to our country. For those who can be tried, let’s try them before our courts of law.
President Obama is going through that arduous, specific process now on each one of these detainees. While his administration is working to clean up this mess that he inherited from the previous administration, the Republicans in the Senate are doing everything they can to block his way and make it impossible for him to resolve the situation at Guantanamo.

I would say the McConnell amendment, page 3, paragraph (2), is a dangerous amendment. It is an amendment that could compromise the ability of the United States of America to prosecute those who could be a danger to our country. Why would we possibly do that?

I urge my colleagues, if I am not given the authority under the rules of the Senate to strike that paragraph, to oppose this amendment.

They didn’t.

Gitmo, is indeed a disgrace — a “no man’s land” as the president called it today, and which Vince Warren rightly described this way last January, on the ten-year anniversary of the opening of America’s Gulag in Cuba:

Wednesday marks 10 years since the first 20 detainees arrived at the U.S. Naval Base in Guantánamo Bay, Cuba. Since then, 779 men have been imprisoned there for years without charge, trial or an opportunity to challenge their detention. They have included boys as young as 12 and men as old as 89.

Many of them had fled persecution in their home countries, only to end up in the wrong place at the wrong time and, ultimately, in Guantánamo. These men have been torn from their families, missed marriages and births, never met nieces and nephews, and lost parents and other family members. Eight have lost their own lives.

From its beginning, Guantánamo was built upon injustice and lies. Guantánamo Bay was chosen as the location for the prison precisely because the Bush administration believed the base was beyond the reach of civilian courts. We were told the men imprisoned there were the “worst of the worst,” as if this somehow justified suspending the rule of law, as if the only way to be safe from terrorism was to abandon human rights and violate civil liberties. As it turned out, when then-Secretary of Defense Donald Rumsfeld made this claim, he already knew what the rest of us learned later: In fact, many of the almost 800 men sent to Guantánamo in 2002 and the years since were innocent, caught while fleeing the chaos and violence of war that erupted when U.S. forces entered Afghanistan.

Once at Guantánamo, most of the men were subjected to torture: solitary confinement, sensory and sleep deprivation, force feeding, confinement to cells for more than 20 hours a day, and physical assault. Because strip searches and body scans were required every time they left their cells, even before attorney meetings and recreation time, many prisoners refused to leave their cells for any reason. Items such as toothpaste, toothbrushes, deodorant, soap and blankets were “privileges” and taken away at will. They were denied the right to practice their religion, had virtually no human contact, and some often did not see the sun for days.

This human rights tragedy is perhaps best revealed by the words of the detainees themselves.

“Tell [my wife] to remarry,” said one prisoner. “She should consider me dead.”

“I look alive,” said another, “but actually I’m dead.”

And yet another: “I am in my tomb.”

Still, Warren is among those who consider Gitmo’s lingering presence to be entirely the fault of the administration. He wrote:

This nightmare continues today. Despite promises to close Guantánamo and reverse the illegal policies of the Bush administration, President Obama has attempted to legitimize them. He has signed an executive order formalizing indefinite detentions at Guantánamo, resumed illegitimate military commissions, and refused to hold U.S. officials accountable for torture.

More than half the men still detained at Guantánamo — 89 of the 171 — have been cleared for transfer or release, yet no one has been transferred since January 2011, the longest period without a transfer in the prison camp’s 10-year history. Obama has refused even to release the names of the 89 detainees cleared for release or transfer. What’s more, Guantánamo has set a precedent that has contributed to the dismantling of civil liberties. In December, Congress passed the National Defense Authorization Act, which makes indefinite military detention without charge or trial, including that of American citizens, a permanent feature of the American legal system.

Good of Warren to at least mention Congress… I mean after all, they do exist.

Foreign Affairs’ Carol Rosenberg had, I think, a more accurate description of what’s going on, in a column she wrote, also last January:

The last two prisoners to leave the U.S. detention center at Guantánamo Bay were dead. On February 1, Awal Gul, a 48-year-old Afghan, collapsed in the shower and died of an apparent heart attack after working out on an exercise machine. Then, at dawn one morning in May, Haji Nassim, a 37-year-old man also from Afghanistan, was found hanging from bed linen in a prison camp recreation yard.

In both cases, the Pentagon conducted swift autopsies and the U.S. military sent the bodies back to Afghanistan for traditional Muslim burials. These voyages were something the Pentagon had not planned for either man: Each was an “indefinite detainee,” categorized by the Obama administration’s 2009 Guantánamo Review Task Force as someone against whom the United States had no evidence to convict of a war crime but had concluded was too dangerous to let go. Today, this category of detainees makes up 46 of the last 171 captives held at Guantánamo. The only guaranteed route out of Guantánamo these days for a detainee, it seems, is in a body bag.

The responsibility lies not so much with the White House but with Congress, which has thwarted President Barack Obama’s plans to close the detention center, which the Bush administration opened on Jan. 11, 2002, with 20 captives.

Congress has used its spending oversight authority both to forbid the White House from financing trials of Guantánamo captives on U.S. soil and to block the acquisition of a state prison in Illinois to hold captives currently held in Cuba who would not be put on trial — a sort of Guantánamo North.

The latest defense bill adopted by Congress moved to mandate military detention for most future al Qaida cases. The White House withdrew a veto threat on the eve of passage, and then Obama signed it into law with a “signing statement” that suggested he could lawfully ignore it.

On paper, at least, the Obama administration would be set to release almost half the current captives at Guantánamo. The 2009 Task Force Review concluded that about 80 of the 171 detainees now held at Guantánamo could be let go if their home country was stable enough to help resettle them or if a foreign country could safely give them a new start.

But Congress has made it nearly impossible to transfer captives anywhere. Legislation passed since Obama took office has created a series of roadblocks that mean that only a federal court order or a national security waiver issued by Secretary of Defense Leon Panetta could trump Congress and permit the release of a detainee to another country.

Neither is likely: U.S. District Court judges are not ruling in favor of captives in the dozens of unlawful detention suits winding their way from Cuba to the federal court in Washington. And on the occasions when those judges have ruled for detainees, the U.S. Court of Appeals has consistently overruled them in an ever-widening definition of who can be held as an affiliate of al Qaida or the Taliban.

Meanwhile, Defense Department General Counsel Jeh Johnson, the Pentagon’s top lawyer, believes that Congress crafted the transfer waivers a year ago in such a way that Panetta (and Robert Gates before him) would be ill-advised to sign them. (In essence, the Secretary of Defense is supposed to guarantee that the detainee would never in the future engage in violence against any American citizen or U.S. interest.)

In a strange twist of history, Congress, through its control of government funds, is now imposing curbs on the very executive powers that the Bush administration invoked to establish the camps at Guantánamo in the first place. Much of its intransigence is driven by the politics of fear: What if, for example, a captive is acquitted in a civilian trial because the judge bars evidence obtained by the military without benefit of counsel? When will another freed Guantánamo detainee attack a U.S. target or interest, such as when Abdullah al Ajami, who was transferred to Kuwait in 2005, blew himself up in a truck bomb attack in Iraq in 2008?

And this, from the New York Times’ Max Fisher last week:

For the Obama administration, it’s a maze with no obvious exits: it doesn’t want to keep these prisoners locked up in Gitmo, which is politically and diplomatically costly, not to mention antithetical to Obama’s stated desire to close the prison, but Congress has forbidden the prisoners from being transferred to U.S. soil. Though the administration had searched for foreign countries to which the detainees could be released, it appears to have since given up, having closed the office responsible for finding those countries.

All of this means that a number of Guantanamo’s detainees are stuck in the facility even though the United States believes they should be released. Perhaps understandably, the detainees are not happy about this. Increasingly aware that the world has largely given up on them, they are starting to make noise.

The past three months have been hard ones at Guantanamo. A hunger strike that began in February now includes 93 of the camp’s 166 detainees, fighting has broken out in the normally sedate Camp Six between inmates and guards, and tensions are reportedly worsening at the facility.

So who are the 86 detainees who have been cleared for transfer out of Guantanamo, and why are they still there? When the Obama administration came into office and took ownership of the camp, it announced its intention to close it. The administration had four ways to deal with the detainees: put them through civilian trials, put them through military tribunals, send them to a foreign country’s prison system or, for a lucky few dozen, release them. The United States has since released 31 detainees to their home countries and another 40 to countries that were not their homelands, either because their home country would not accept them or because the United States believed the home country might subject them to torture or other abuses.

These remaining 86 detainees are the ones who, the United States believes, should be released to either their home or another country, but haven’t been because of diplomatic and political hurdles. There are two theories as to why an individual detainee cleared for release might not get it. The first theory is that no country will accept him. It’s not implausible; as an example of how tough it can be to find safe homes for the detainees, some Chinese Muslim dissidents held at Gitmo had to released to, of all places, Bermuda. But the second theory that’s increasingly mentioned by critics: some administration officials might fear that a released detainee could later participate in terrorism, for which the administration might well be blamed.

Could Obama do more about this? I don’t know.  Adam Serwer of Mother Jones has written about the hunger strike that brought the facility at Guantanamo Bay back into the spotlight via today’s press briefing, and he notes that Sen. Diane Feinstein has suggested that transferring prisoners out of the U.S. is the answer. Serwer writes:

President Barack Obama’s administration maintains it is doing everything it can to close the facility. But in her letter, Feinstein called on the administration to renew its efforts to transfer the 86 Gitmo detainees who have been cleared for release. Could Obama quell the uprising by resuming transfers out of the camp?

Without a resumption of transfers, the detainees who remain in Gitmo—even those who the George W. Bush and Obama administrations agreed are no longer threats—are likely to die there. More detainees have died in detention than been successfully tried in military commissions, and no detainees have been transferred from the camp since September 2012. Daniel Fried, the special envoy whose job it was to persuade countries to take Gitmo detainees, was reassigned in January. Many of the remaining detainees are Yemeni. Given the ongoing turmoil in their home country and the presence of Al Qaeda in the Arabian Peninsula, the Obama administration sees sending them back as a security risk—and has yet to lift a self-imposed ban on transfers to Yemen it adopted three years ago.

Maybe President Obama should direct his administration, maybe even at the level of secretary of state, to push harder to find foreign governments willing to take the prisoners currently at Gitmo, though there would be no guarantee that the receiving country would free them rather than just throwing them into another jail. And if they did free them, what happens then? Serwer continues:

Congress has done everything it can short of making transfers illegal to prevent the administration from sending Gitmo detainees elsewhere. Current law states that the secretary of defense has to certify that, among other requirements, the detainee being transferred won’t ever pose a threat in the future, which is ultimately not something the administration can control. Although the rate of former Gitmo detainees who later join terrorist groups is relatively low—and lower than it was during the Bush administration—any failure would be politically toxic, and the certification process ensures that the Obama administration would bear full responsibility. “The restrictions have made it extraordinarily difficult, and that the process is fraught with legal hurdles,” said a defense official. “Some of the things that we are asked to do simply cannot be verified.”

But “extraordinarily difficult” isn’t the same as impossible, says Daphne Eviatar, an attorney with Human Rights First. Politically, “the no-risk option is always to leave even innocent people behind bars indefinitely. But as Obama acknowledged when he first took office, that’s not an acceptable solution for the United States, and it will undermine our national security in the long run,” Eviatar says. Resuming transfers “would give detainees hope that there is a way out of Guantanamo, other than death.”

By resuming transfers, the Obama administration might be able to end the strike. But doing so would entail taking on a significant amount of political risk—and, the administration believes, national-security risk as well.

“The secretary of defense could just boldly issue the required certifications, bulling past the question of whether they were truly met,” says Robert Chesney, a law professor at the University of Texas School of Law who served on the Obama administration’s task force on detention policy. “With or without a certification requirement, of course, these days all releases carry political risk since a former detainee committing a terrorist act would almost certainly be blamed on the administration anyway.”

This is not a theoretical risk. Previously released detainees have turned up in terrorist cells, after being released by the Bush administration and deported. (The New York Times posted a thorough online debate on the issue after Obama’s “close Gitmo” executive order in 2009.)

And Fisher’s column also points out that:

A recent study by a U.S. intelligence office estimated that between 16 and 27 percent of released Gitmo detainees have participated in terrorism since leaving the facility. Imagine the reaction if, hypothetically, the Boston Marathon bombings were discovered to have been conducted by detainees whom the Obama administration had cleared from Guantanamo and you can perhaps start to understand the White House’s possible thinking.

To be clear, I’m not defending this position or arguing that it’s correct. If this is indeed part of the administration’s thinking, it raises the questions: How do you weigh that risk against the continued detention of 86 men who might otherwise go free? And isn’t there something distasteful and unsettling about imprisoning people not because they’ve done anything wrong but because they might in the future?

A recent study by a U.S. intelligence office estimated that between 16 and 27 percent of released Gitmo detainees have participated in terrorism since leaving the facility. Imagine the reaction if, hypothetically, the Boston Marathon bombings were discovered to have been conducted by detainees whom the Obama administration had cleared from Guantanamo and you can perhaps start to understand the White House’s possible thinking.

To be clear, I’m not defending this position or arguing that it’s correct. If this is indeed part of the administration’s thinking, it raises the questions: How do you weigh that risk against the continued detention of 86 men who might otherwise go free? And isn’t there something distasteful and unsettling about imprisoning people not because they’ve done anything wrong but because they might in the future?

I assume Obama’s critics on the left will argue that he should direct the DOD to take the chance, and issue those certifications, political risk be damned. Maybe he should. But that doesn’t completely solve the problem of where these prisoners are supposed to go.

That’s because the one thing that is clear, whether Obama’s detractors want to believe it or not, is that Obama cannot close Gitmo without Congress, and he can’t close Gitmo without sending the prisoners SOMEWHERE — if not on American soil (which Congress is not ever going to allow) then to a foreign country, or to their home countries, assuming they will take them.

Bottom line, it’s not as simple as firing off an executive order, as some on the left have insisted. In fact, it’s not even as simple as firing off THREE of them.

Clearly, the administration should do something, in the name of humanity and our national honor. But damned if I know what.

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6 Responses to Who’s afraid of shutting down Gitmo?

  1. Pingback: Obama Says Guantanamo Should be Closed. Again. - This Week in Blackness

  2. Flo says:

    Thanks for this review of the situation…. the real situation.

    The final paragraph says it all.

  3. Gordon Hilgers says:

    This is what happens when the goobs take-over Congress. When we’ve got goobers like Louis Gohmert saying we shouldn’t impose any gun control because of what? Bestiality? We’ve got a problem.

  4. J. Hooper says:

    These are just facts.

    If one thing has been made clear over the last 5 years of Pres. Obama, it’s that facts mean nothing to his most vocal detractors on the left & right. It just “feels” better to paint Obama as worse than Bush on GITMO. It gets you page views and might even get you on TV.

    Facts are for “Obama lovers”.

  5. James says:

    Keep GITMO open and put our corrupt politicians there. The inmates who have been tortured can be the jailers.

  6. Pingback: Who’s afraid of shutting down Gitmo? : Entertainment

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