Last night’s presidential debate rightfully put the spotlight on
President Obama’s performance over the last four years as
commander-in-chief. As informative as the debate was in certain
respects, it regrettably did not include discussion of the
President’s views on what to do with the remaining terrorist
detainees currently being held at Guantanamo Bay. Like his
administration’s spectacular mishandling of the Benghazi attack
with which last night’s debate opened, recent maneuvering by
President Obama and his allies to possibly take another run at
transferring terrorist detainees from Gitmo to the United States
underscores a troubling reality of a President unable at best, and
unwilling at worst, to acknowledge that we are a nation at war with
Islamic terrorism.
As has been
pointed out, transferring Gitmo detainees to U.S. soil could
create an opening for their lawyers and sympathetic judges to give
them criminal trials in federal court, complete with the range of
defendant-friendly legal protections they
provide. That Obama would attempt this highly unpopular
transfer yet again is further symptomatic of his failure as a
wartime Commander-in-Chief, shown this time through his
unwillingness to use military detention — a tool fundamental to
the prosecution of a war — despite clear authority from Congress
to do so.
Though no one acknowledges that any such transfer is underway,
there are several indications pointing in that direction.
Earlier this month, the Department of Justice initiated the
purchase of the Thomson Correctional Center, a now-empty state
prison facility located in Thomson, Illinois. The reason for the
purchase was ostensibly to address overcrowding in the federal
prison system, with Sen. Dick Durbin (D-IL) also asserting that the
purchase would bring over a thousand jobs to his state. This is the
same facility that was on the table as a Gitmo transfer destination
back in 2009, and at the time was one of several transfer attempts
that collectively sparked fierce backlash throughout the American
public and in Congress. The
result: several pieces of legislation barring the use of
federal funds for the transfer of Gitmo detainees to the United
States or for constructing/upgrading U.S. facilities for that
purpose. Given this history, the announcement of the purchase has
understandably elicited strong reaction from Capitol Hill, notably
from Rep. Frank
Wolf (R-VA), Chairman of the Commerce-Justice-Science
Appropriations Subcommittee (which funds the Justice Department),
and Rep. Pete King (R-NY), Chairman of the House Homeland Security
Committee, among others. The Obama administration
denies it is going to use the Thomson facility for a Gitmo
transfer, but as Debra Burlingame’s 9/11 Families for a Safe and
Strong America observes, the
Justice Department has cracked the door open for such a transfer by
citing as part of its purpose for the acquisition: “…as well as to
provide humane and secure confinement of individuals held under
authority of any Act of Congress, and such other persons as in the
opinion of the Attorney General of the United States are proper
subjects for confinement in such institutions…” Attorney General
Holder, however, is not opening that door all by himself.
It appears that the Chairwoman of the Senate Intelligence
Committee, Sen. Dianne Feinstein (D-CA) — a leading
proponent of closing Gitmo and bringing its detainees to the
United States — is laying some of her own groundwork on this as
well. Chairman Wolf has previously
indicated that Sen. Feinstein has requested that the Government
Accountability Office (GAO) produce an assessment of the extent to
which there are facilities in the United States that are suitable
for housing Gitmo detainees. The GAO apparently is undertaking such
an assessment — which it expects to have completed by November 14,
2012 — and describes it as
follows:
MILITARY CAPABILITIES & READINESS
Title: GUANTANAMO BAY DETAINEES: FACILITIES AND FACTORS FOR
CONSIDERATION IF THE DETAINEES WERE BROUGH TO THE UNITED STATES
(351696)
Type: Congressional
Anticipated Completion: November 14, 2012
Background/Key Questions: In the event that the detention
facilities at Guantanamo Bay, Cuba, are closed, facilities in the
United States that are suitable to house Guantanamo detainees might
need to be identified. Key Questions: 1) What are the
characteristics of the Guantanamo detention facilities, and what
legal provisions and operational standards are they required to
meet? 2) What are the characteristics of DOD correctional
facilities, and do existing facilities have the capacity to hold
the current Guantanamo population? 3) How does the Dept. of Justice
manage individuals in their custody who engage in terrorist-related
activities, and do their facilities have the capacity to hold the
Guantanamo population? 4) What potential challenges, if any, may
affect the ability to house Guantanamo detainees in the U.S.?
Then there is President Obama’s own continued,
recently-re-affirmed preference for trying terrorists in criminal
courts, despite public outcry objecting to such a course. According
to an
interview in November’s Vanity Fair, President Obama
apparently would have sought to put Osama bin Laden on trial in
federal court, had he been captured alive:
…”in the unlikely event that bin Laden surrendered, Obama saw an
opportunity to resurrect the idea of a criminal trial, which
Attorney General Eric Holder had planned for Khalid Sheikh
Mohammed. This time, the president tells Bowden, he was prepared to
bring bin Laden back and put him on trial in a federal court. ‘We
worked through the legal and political issues that would have been
involved, and Congress and the desire to send him to Guantánamo,
and to not try him, and Article III.’ Obama continues: ‘I mean, we
had worked through a whole bunch of those scenarios. But, frankly,
my belief was if we had captured him, that I would be in a pretty
strong position, politically, here, to argue that displaying due
process and rule of law would be our best weapon against al-Qaeda,
in preventing him from appearing as a martyr.’”
If President Obama would have fought to put the founding father
and leader of al Qaeda in the criminal court system, rather than
place him in military detention and possibly try him by military
commission, it would not be difficult for the President to conclude
that the current Gitmo detainees — by definition lower on the
chain of command than bin Laden but no less avowed enemies of the
United States — also should be tried in criminal court. That this
statement would be made against the backdrop of a recent purchase
of a U.S. facility once on the table for Gitmo transfers, and the
GAO’s ongoing work to assess the suitability of U.S. facilities for
such transfers, strongly suggests that a transfer may be in the
works, the administration’s assurances notwithstanding. And if
that’s the case, it underscores this president’s discomfort with
framing the war against Islamic terrorism as a war, in which
military detention is a basic and indispensable tool.
Defenders of this President’s approach to terrorism will point
to his use of drones to eliminate terrorists as proof of his
strength as a Commander-in-Chief taking the fight to the enemy. But
while individual drone strikes are a justified and often desirable
tactic, they cannot fully substitute for a coherent military
detention policy that provides for detaining and gathering
intelligence from enemy combatants during hostilities and then
trying them in a venue suitable to the wartime circumstances of
their capture. Former judge and Attorney General Michael Mukasey,
when commenting on the drone strike that killed al Qaeda operative
Anwar al-Awlaki last year,
framed it well:
Why fret about the difficulty of eliciting information from
captured detainees, or of detaining them at all, when we have
drones available to kill rather than capture? Well, drones are
aptly named, in the sense that they do not guide themselves — they
need human beings, who need intelligence. If we are to win this war
against an enemy that occupies no particular territory, we need
intelligence. That can be gathered electronically but electronic
wizardry has its limits.
Moreover, there is something amiss about a President who sees
his options as either drone strikes or criminal trials when it
comes to going after terrorists. At every turn, President Obama has
sought to avoid the sensible and militarily valuable middle-ground
of military detention, which would maximize intelligence-gathering
opportunities while minimizing the legal and security risks that go
with criminal trials. The mastermind of 9/11 and his associates are
only on trial by
military commission at Gitmo after administration delays to the
commission proceedings and the failure of the administration to
transfer Khalid Sheikh Mohammed and company to New York in 2009.
The President’s profound — and profoundly misguided — discomfort
with military detention is clear, making it all the more likely
that he and his allies are maneuvering to bring Gitmo detainees to
the United States, most likely for eventual criminal prosecution in
federal court.
Ironically, the Obama administration is sending troubling
signals that on his watch, not even conviction and incarceration in
the civilian criminal system will guarantee that justice will be
served. Several reports have
indicated that the administration is contemplating releasing
“The Blind Sheikh” Omar Abdel Rahman, the spiritual advisor to the
1993 World Trade Center terrorists, from federal prison,
transferring him to Egyptian custody.
If left unchecked now, President Obama and his allies may move
in the near future to bring Gitmo detainees to American shores. If
that happens, we will be one step closer to losing a war that
President Obama does not care to admit we are in, whether we like
it or not.
