Barack Obama rode to his 2008 victory on the enormous unpopularity of George W. Bush. Obama made his opposition to the Iraq war his campaign centerpiece, and he made much of his promise to close the terrorist detention facility at Guantanamo Bay, Cuba, which he claimed was a stain on our nation’s history.
Last week Obama took his last shot at closing Gitmo. Of the hundreds who have been detained at Gitmo over the last fourteen years, only ninety-one are left. Part of the reason for this is that Obama has refused to incarcerate any captured terrorists there since his inauguration. Instead of being confined there, some have been parceled out to other nations and a great many have been released.
Obama’s plan calls for the transfer of at least thirty-five of the remaining ninety-one prisoners to other nations such as Saudi Arabia, Afghanistan, and Oman, all of which received transferred prisoners in 2015. The problem with those transfers is that many — about thirty percent — of those transferred resume their terrorist activities. (One, Ibrahim al-Qosi, has turned up as al-Qaeda’s principal recruiter in the Arabian Peninsula. Asked about al-Qosi at a Senate hearing last week, Secretary of State Kerry said, “Well, Senator, he’s not supposed to be doing that.”)
Obama’s plan also says that future terrorist detainees would either be sent to America for trial or sent to other nations.
Others, under the plan, would have their annual status reviews accelerated with a view to releasing them.
Of those remaining — from thirty to sixty — would be transferred to an unnamed prison in the United States, which would necessarily result in their being vested with complete rights under the Constitution. (About ten can never be released or tried because of secrets that would have to be divulged in any trial, or where there may be evidence of prisoner abuse.)
There is no way under the Constitution that anyone can be imprisoned forever without trial. Those thirty to sixty — among the worst terrorists in the world — would be released eventually after the inevitable federal court order that they be tried or released.
Obama’s latest plan was dead on arrival in Congress for one big reason. The National Defense Authorization Bill has, for several years, barred the use of appropriated funds to move Gitmo prisoners to the United States. It’s one of the very few instances where Congress has actually used its power of the purse effectively during the past seven-plus years.
The latest NDAA — that for Fiscal 2017 — was signed into law by Obama in November. When he did so, Obama used a signing statement to replay the argument that he made in 2008 and since:
Maintaining this site, year after year, is not consistent with our interests as a Nation and undermines our standing in the world. As I have said before, the continued operation of this facility weakens our national security by draining resources, damaging our relationships with key allies and partners, and emboldening violent extremists. It is imperative that we take responsible steps to reduce the population at this facility to the greatest extent possible and close the facility.
And he threatened to close Gitmo using his executive power despite the law:
Under certain circumstances, the provisions in this bill concerning detainee transfers would violate constitutional separation of powers principles. Additionally, section 1033 could in some circumstances interfere with the ability to transfer a detainee who has been granted a writ of habeas corpus. In the event that the restrictions on the transfer of detainees in sections 1031, 1033, and 1034 operate in a manner that violates these constitutional principles, my Administration will implement them in a manner that avoids the constitutional conflict.
Obama’s original argument against keeping Gitmo open was echoed last week by Hillary Clinton (who, of course, was for keeping Gitmo open before she was for closing it). In a statement issued on Tuesday, after Obama’s plan was announced, Clinton said, “Over the years Guantanamo has inspired more terrorists than it has imprisoned.… It has not strengthened our national security, it has damaged it.”
The Obama-Clinton position is worthy of a little analysis because it reaches a false conclusion based on an equally false premise.
That argument poses a false dichotomy: that imprisoning terrorists at Gitmo is inherently more dangerous and more damaging to our security and global position than imprisoning them somewhere else.
The terrorist networks use Gitmo as a propaganda tool because they fear it. There is no evidence that it is a successful recruiting tool for them. That supposed “powerful recruiting tool” is an unsupported assertion by Obama, Clinton, some in the media, and the anti-anti-terrorists around the world.
This is not a choice between Gitmo and some federal prison in America because it makes no difference to those who give support to or apologize for terrorists whether we imprison them in Gitmo or a random federal prison here. They will never be satisfied until all have been released because they — the terrorists’ supporters and the anti-anti-terrorists in the media, the liberal lawyers who have defended Gitmo inmates pro bono and liberals in Congress — believe we are in the wrong by imprisoning them regardless of their past actions. They are the modern version of what the late Amb. Jeane Kirkpatrick once labeled the “blame America first” crowd.
Obama’s threat to transfer Gitmo prisoners to the U.S., which he has hinted at several times before and since his November signing statement, would create a constitutional crisis and leave the military officers who have authority over Gitmo — as well as the troops who might carry out such an order — in an untenable position.
Both Attorney General Lynch and Defense Secretary Carter have said publicly that moving Gitmo inmates to the United States is illegal. There is no maneuvering room here for Obama. His unlawful “changes” to the Obamacare law were carried out by his minions in the Department of Health and Human Services without congressional action. But to order military members and their civilian bosses to move Gitmo inmates to the U.S. is another matter.