For at least another year the terrorist detention facility at
Guantanamo Bay, Cuba, will not be closed, Khalid Sheik Mohammed
won’t be able to lawyer-up in New York City and President Obama
will no longer be able to release Gitmo inmates to nations that let
them loose upon the world.
Or will he? Obama’s Gitmo melodrama seems destined to play
on indefinitely because the president’s policies are so contrary to
America’s interests that even the hyperliberal 111th Congress
wouldn’t play the role it was assigned.
Almost from the moment it was opened in 2002, the left has
made Gitmo a principal rallying point for antiwar and anti-American
fervor. The media coverage — here and abroad — ranged from
inaccuracy to hysteria. I recall one BBC interview three years ago
in which the introductory report from the Beeb’s man on the scene
told of riots among mistreated prisoners that he observed from
outside the gates. It was entirely fictional.
I visited Gitmo in July 2006 and found no evidence of
torture or any other mistreatment of anyone except the guards who
had to deal with some of the worst people in the world. At one time
or another each of them was the recipient of the “cocktail,” a
batch of feces and urine hurled at them by the inmates.
In the ‘08 campaign, the media collaborated with Obama in
casting him in contradictory terms: an antiwar warrior against
terrorism, eager to heal the breaches with Islamic nations
supposedly caused by Bush’s recklessness. No network television
anchor parsed Obama’s statement when he promised to
“close Guantánamo, reject the Military Commissions Act and adhere
to the Geneva Conventions.” Without saying so, Obama clearly agreed
with his predecessor candidate, Sen. John Kerry (D-Mass), that
terrorism is a problem for law enforcement, not for the
military.
Alleging that it was a recruiting tool for al-Qaeda and a
stain on American honor, Obama’s campaign made Gitmo a synonym for
torture. But he never admitted the obvious truths: that there was
no torture at Gitmo, that al-Qaeda benefitted more from American
self-flagellation over it than from its existence, and that there
was no good alternative to it.
Two days after his election, the ACLU issued a statement
demanding Obama close Gitmo on Day One of his presidency. They
weren’t noticeably disappointed that Obama waited until Day Three
of his presidency — January 22, 2009 — to sign an executive order
directing that it be closed within one year.
We will observe the second anniversary of the deadline
later his month. In the interim, the Democrat-dominated Congress
has thwarted Obama’s every plan to close Gitmo. He couldn’t move
the Gitmo inmates to a prison in Illinois because Congress denied
the funding. The congressional backlash to Attorney General
Holder’s plan to try 9-11 planner Khalid Sheik Mohammed in a New
York federal court was so strong Holder had to back off.
Nevertheless, Obama continued to release Gitmo inmates to
other nations which have released them to continue their sanguinary
careers. Thanks to WikiLeaks, we know that Obama has tried
everything from bribery to flattery — so far unsuccessfully — to
get our putative allies to take the Gitmo inmates into their own
prisons.
The Bush administration’s “combatant status review” panels
operated under procedures that had been briefed thoroughly to
congressional overseers, but Obama’s new procedures were kept
secret. In fact, when Republican senators demanded to see the new
procedures, their demands — as of last month — went
unanswered.
Last Friday the president faced a “McCain-Feingold”
moment. George Bush repeatedly questioned the constitutionality of
the campaign finance law but — because it took him years to find
his veto pen — he punted the question to the Supreme
Court.
Now Barry, perhaps for the same reason, signed the last
product of the Democratic 111th Congress: the 2011 Defense
Authorization Act which bars transfer of Gitmo inmates to the
United States for any purpose, even the civilian trials Obama and
Attorney General Holder still insist are superior to the military
commissions established for that purpose. It also restricts the
transfer of Gitmo inmates to foreign governments unless specific
criteria are met to ensure the inmates will not resume their
terrorist careers.
In his signing statement Obama posed two large objections.
First, he insisted that “The
prosecution of terrorists in Federal court is a powerful tool in
our efforts to protect the Nation and must be among the options
available to us.”
Second, Obama wrote that his administration has
obtained proper assurances from governments that might receive
detainees and that the new additional requirements “…would hinder
the conduct of delicate negotiations with foreign countries
and therefore the effort to conclude detainee transfers in accord
with our national security.”
Both of those objections imply constitutional
grounds for the president to either ignore the law or take it to
court to challenge its validity. Unfortunately, Obama has a point:
Congressional limitations on the release of Gitmo inmates are
probably unconstitutional as have been other congressional
restrictions on the president’s warmaking powers, going back to the
Nixon-era War Powers Act.
Presidents since Nixon have accommodated such
congressional actions without agreeing to their validity. But what
will Barry do? His signing statement promises to seek repeal of the
measures, but any proposal to repeal them will be dead on arrival
in the new Republican House.
Obama doesn’t fear the left’s frothing over his
broken campaign promise. But this isn’t an issue of minor import to
the president: it is part of his core beliefs that Gitmo has to be
closed in order for us to satisfy those with whom we are at war.
Both he and his attorney general have gone to extraordinary lengths
to move the terrorists at Gitmo into the civilian justice system
and to release too many of them. Barred, at least temporarily from
the former, Obama is very likely to resort to the latter despite
the law’s restrictions.
According to a report by the Director of National
Intelligence released in December, the rate of recidivism among
released Gitmo inmates has reached about 25%, counting those
released by the Bush administration. The rate — measured by the
Pentagon — roughly doubled between June 2008 and May 2009. That
will not prevent further releases.
Both Obama and Holder have consistently ignored
Congress when it suited them. (Just ask Republican members of the
Senate, whose unanswered letters to Obama and Holder remain a
smoldering controversy.) The most likely outcome is that the Obama
administration will either ignore the new certification
requirements entirely or belatedly send inadequately supported
findings to Congress after more Gitmo inmates are
released.
The Gitmo Melodrama will continue. Of the 174
inmates still there, at least 80 are considered the hardest of the
hard cases and not susceptible of trial even in military
commissions. They, at least, should stay at Gitmo for the rest of
their lives.
