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.
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