Both presidential candidates have adopted that position and even President Bush
and Defense Secretary Gates have expressed similar sentiments.
A study by
the Center for Strategic and International Studies entitled “Closing Guantanamo:
From Bumper Sticker to Blueprint” outlines a policy that appears sensible and
practical. Appoint a blue ribbon commission to review all cases, recommend some
for trial and release the remainder. The former would then process through the
judicial system. If found guilty, imprison them; if acquitted, release them.
Then, close Gitmo.
seems to be a clean, logical solution for a tough problem, issues arise. Of the
250 or so detainees remaining at the detention facility, approximately 80 are
now on the list for trial before Military Commissions.
Commission process has been highly controversial, requiring multiple judicial
rulings and Congressional legislation to resolve. It is a safe bet that its
judgments will meet a firestorm of criticism and a string of appeals for
judicial review. Nevertheless, progress has been made. Australian David Hicks
pled guilty to multiple counts of supporting terrorism and was returned to his
home country. Bin Laden’s driver, Salim Hamdan, a Yemeni, was found guilty and
sentenced to six years of prison, receiving time served for 5½ years in
The list of
those in the prosecutorial queue includes 9/11 architect Khalid Sheikh Mohammad
and his lieutenant Ramsi Binalshibh. Evidence gathered includes testimony of
witnesses, circumstances, and individual confessions. Although defense
attorneys have consistently challenged many of the confessions as derived
through torture, some have been given voluntarily. KSM continues to stand by
his statements proudly and expresses a desire for martyrdom.
continue to be disposed, the issue will arise: where will the guilty will serve
out their sentences. Some released detainees have beem refused reentry by home
countries. Transferring others to certain countries could expose them to
torture or arbitrary execution.
confinement at Guantanamo is not available then the question becomes where would
they serve their time? A facile answer might be the military or Federal prison
systems. This could be a very dangerous option. Mixing hardened terrorists into
a criminal population could result in radicalization of elements of the prison,
and would present a target for terrorist attacks. Witness suicide attacks on
prisons in Afghanistan and Yemen.
housing conditions could possibly be found in the U.S. prison system for these
men that satisfies the need to isolate them from the general population.
However, relocating them from inaccessible Guantanamo to well-defined locations
inside America only adds a politically-charged target to terrorists’ lists.
these issues still does not address a critical point. These men were brought to
Guantanamo originally not to prosecute them for crimes but to remove them from
the battlefield. They were deemed sufficiently dangerous as to pose a continual
threat to America. They cannot be released or transferred to countries that
might arbitrarily release them back into the field.
This is not
a whimsical concern. Of the more than 100 detainees released through the Annual
Review Board process – a review that every detainee undergoes to determine if
he has intelligence information or continues to pose a threat to U.S. interests
– many have returned to the battlefield. Pentagon sources show that more than
three dozen – an alarming recidivism rate – have gone back to the fight. In
Afghanistan one detainee who received a prosthesis while in Guantanamo returned
to top Taliban leadership and killed two UN engineers before suciding with a
grenade to avoid recapture.
those whom the ARBs have determined that they still pose a credible threat? At this
time, approximately 135 Guantanamo detainees fit that profile. Because of lack
of hard evidentiary requirements – remarkably difficult to gather in a combat
situation – the government has elected not to place them before Military
Commission hearings. Yet these men, many by their proud admission, are hardened, committed jihadists who have pledged to resume attacks if released.
It would be
extraordinarily foolish and irresponsible to release these men simply because
their cases do not meet the exacting standards of U.S. courts. Under all
international conventions principals are permitted to detain enemy combatants
for the duration of hostilities. The fact that some detainees are being tried
for war crimes does not obviate the need to continue to hold unlawful enemy
combatants who will return to the fight.
of Congress passing enabling legislation, as Gates has suggested, that would
allow them to be held indefinitely on U.S. soil without judicial proceedings is
impossible to imagine. Such legislation, quite properly would be viewed as
genuine weakening of Americans’ Constitutional rights, and would inevitably be
challenged in higher courts. Even if it were passed, this kind of law would be
inimical to long-term U.S. interests.
without saying that relocating such a large number to the U.S. would make
attacks on the holding facilities too lucrative for terrorists to resist.
making any decisions about Guantanamo closure it is imperative that a rational
debate – perhaps a vain hope with such a political hot potato as Gitmo – be
held that examines all aspects of disposition of the remaining detainees and
the full spectrum of options and the implications with selecting any one.
for national security purposes, holding them at Guantanamo is the least worst