OPINION:
What began with a bang ended with a whimper. The new Defense Authorization bill contains provisions barring the president from spending any money to bring terrorist detainees held at Guantanamo Bay, Cuba, to the United States, or to release them to foreign countries unless they meet a rigorous security threshold. President Obama reluctantly signed the bill this week, saying he will “work with the Congress to seek repeal of these restrictions.” Given the shift in power in the new Congress, it’s likely his vision for closing the Guantanamo terrorist detention facility is in ashes.
Closing the so-called “American Gulag” at Guantanamo was one of Mr. Obama’s signature issues during the 2008 campaign and was part of his general moral indictment of the George W. Bush administration. Mr. Obama underscored the symbolic importance of the issue when - as one of his first acts in office - he signed an executive order pledging to close the facility within a year.
Two years later, most of the detainees are still where they were in 2009. Approximately 50 have been released since Mr. Obama became president, a mere one-tenth the number that had been freed by President Bush. During the 2008 campaign, Mr. Obama’s partisans conjured images of detainees as innocent people caught up in the dragnet, humble goatherds or old men languishing behind fences wanting only to return to their homes. In reality, those still being held are hardened terrorists whose release would place the country in danger.
More than half those left at Guantanamo are from Yemen, which has a lackluster record controlling previously released detainees and has been heating up as a theater in the War on Terrorism. This point was driven home by the Fort Hood Massacre and the attempted Christmas Day 2009 “underwear bomb” attack on Northwest Flight 253; both of those terrorist attacks were tied to Yemen-based al Qaeda rising star Anwar al-Awlaki. Exporting Yemeni detainees wholesale back to their home country would have been nothing more than sending reinforcements to the terrorists.
Plans to relocate the Gitmo facility to the United States foundered on several factors, including the detainees’ legal status. Guantanamo Bay was chosen because it is a legal gray area, first used by President Clinton’s administration to hold Cuban and Haitian refugees in legal limbo. Moving detainees into the U.S. federal courts ran into a variety of roadblocks, mostly uncertainties about whether bad actors could be convicted. Transforming terrorist detainees into regular criminals would result in scores of costly trials in which prosecutors would face barrages of questions regarding how the defendants were apprehended, how evidence was collected (in many cases through classified means that the government would not want revealed in court), and the way they were interrogated (or “tortured,” according to Mr. Obama).
The government has faced potential embarrassment in the courtroom due to a combination of prosecutorial incompetence and Justice Department political correctness that neglects some evidence deemed to have been collected using adversarial techniques. This point was driven home in November 2010 when accused al Qaeda terrorist Ahmed Khalfan Ghailani was convicted of only one of 285 charges related to the 1998 bombings of American embassies in Africa. The White House also faced political push-back from states that didn’t want to house a new terrorist detention facility, even in a job-poor economy.
President Obama may one day realize that the Bush administration’s approach was not as cavalier as he had charged. The Bush team crafted a strategy intended to gain maximum intelligence advantage from detainees without facing the complexities that would accompany hundreds of trials and - in the best case - would result in the terrorists being sent to jail, which functionally had been accomplished already. Mr. Obama’s failure to meet his pledged year-long deadline was a triumph of common sense over political symbolism and has made the president the object of the same vitriol he hurled at his predecessor. He should have left well enough alone at Gitmo.
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