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A New Guantánamo
President Obama adopts the Bush detention policy in a different locale.
31 December 2009

With his arbitrary one-year deadline to close the Guantánamo Bay detention camp fast approaching, President Obama has learned that disposing of the camp’s inmates is more easily said than done. With approximately 210 detainees remaining, down from about 240 a year ago, the president has encountered legal, political, and logistical questions on whether to try them, release them, or continue to detain them indefinitely without trial. Nearly a year into his tenure, Obama has yet to formulate a comprehensive policy, and is now proposing to continue one of his predecessor’s most controversial moves—but in a new location.

The president has flip-flopped a number of times on how to handle detainees against whom there is sufficient evidence of crimes, unsure whether to try them in military commissions or in federal courts, which impose far greater national-security risks. On his second day in office, President Obama suspended military commissions, declaring them an “enormous failure.” A few months later, he reversed course, reinstating the commissions with just a few cosmetic adjustments. Shifting course yet again after half a year, he decided to suspend Khalid Sheikh Mohammed’s military-commission trial indefinitely and instead to initiate a criminal proceeding in the Southern District of New York.

This shift didn’t mark a final policy decision against military commissions, however. At the same time, Attorney General Eric Holder declared that military commissions would be used for some other detainees, such as Abd al-Rahim al-Nashiri, the mastermind of the USS Cole bombing. But if military commissions are a fair venue, as the administration acknowledges, why not resume Khalid Sheikh Mohammed’s military-commission trial, rather than take on enormous security risks and financial costs by trying him in civilian court? Such incoherence has not only caused confusion and unpredictability for law enforcement officials and military interrogators; it has also substantially delayed detainees’ trials.

The president has also encountered problems with discharging prisoners who have been cleared for release. For one thing, it may be hard to determine who is no longer dangerous. According to the Pentagon, over 70 former detainees—nearly one out of seven—have recommenced their terrorist mission. At first, the administration announced that it was considering freeing some of the Guantánamo inmates into the United States. But apparently Obama’s legal team overlooked a national-security law that could prohibit such release. The REAL ID Act of 2005 bars anyone from entering and living in the United States who has been affiliated with terrorist activity—which would apply to many, if not all, of the Guantánamo inmates. This eminently sensible provision garnered 99 votes in the U.S. Senate, including the vote of Obama himself, then a senator. President Obama has yet to explain how releasing detainees into the United States would not violate this law.

As it became clear that the U.S. was unlikely to open its borders to these prisoners, Obama tried to convince our European allies to take some. But European nations have been reluctant to accept more than a few. That leaves countries such as Yemen and Saudi Arabia as possible contenders, but both nations have poor track records when it comes to keeping former Guantánamo inmates off the battlefield, demonstrating the difficulty of discerning which detainees genuinely no longer pose a threat. In Yemen, where the administration recently sent six Guantánamo prisoners, former detainee Said Ali al-Shihri has emerged as one of the top terrorist leaders in the country. And on Christmas Day, Abdul Farouk Abdulmutallab attempted to blow up a Northwest Airlines flight with explosives he claims to have obtained in Yemen; it’s unknown so far whether any Guantánamo alums were involved in the attack, but the incident amply illustrates how Yemen has become a safe haven for America’s enemies. Potentially the next major training and operational center for al-Qaida, Yemen could be a staging ground for another attack on our soil—and with over 90 Yemeni inmates remaining at Guantánamo, it could prove dangerous to send them to back to their native land.

Saudi Arabia, meanwhile, boasts a rehabilitation program for terrorists, but it’s hardly the resounding success that the Obama administration claims. Of Saudi Arabia’s 85 most wanted terrorists, 11 are former Guantánamo detainees who took part in the rehabilitation program, according to the Saudi Arabian government. Republican senator Jeff Sessions, the ranking member of the Senate Judiciary Committee, says that “the list of failed participants in the Saudi program reads like a Who’s Who of al-Qaida terrorists on the Arabian Peninsula.” Obama surely must realize the danger of freeing detainees to these countries only to see them rejoin their fight against the United States.

Finally, Obama has apparently realized that he has no choice but to detain indefinitely suspects who cannot successfully be tried but still pose a danger. The administration has proposed to buy the state correctional center in Thompson, Illinois, about 100 miles west of Chicago, and to convert it into a federal super-maximum-security prison. The project would cost hundreds of millions of dollars, which Congress has thus far refused to allocate. According to the president, closing Guantánamo would restore the United States to the “moral high ground.” But even if he convinces Congress to fund the project, can Obama really claim a moral victory by simply transferring the inmates to another detention center with a different name?

During his campaign, Obama maligned President George W. Bush for detaining our enemies, even though they were being held according to the laws of war. Now, Obama has adopted that policy (though for a new facility) and outraged the far Left. “Prolonged imprisonment without trial is exactly the Guantánamo system that the president promised to shut down,” said Shayana Kadidal, a lawyer for the Center for Constitutional Rights.

Preoccupied with building the new detention center, the president has failed to set up legal rules for determining who can be detained. Prisoners facing long-term captivity without trial will inevitably seek to challenge their detention in federal courts, a right that they have under the 2008 Supreme Court decision Boumediene v. Bush. Unfortunately, the Obama administration has neglected to work with Congress to establish evidentiary rules governing these proceedings, such as how to handle classified information, witness testimony, and discovery rights. With so many legal and procedural questions still unanswered, Obama remains determined to use taxpayer dollars to buy and renovate a Gitmo look-alike so that he can claim to have carried out his pledge to close the original facility. This is the price the American public pays when a president makes a hasty promise without knowing if it’s possible to keep it.

Stephanie Hessler is an adjunct fellow at the Manhattan Institute. She served as a constitutional lawyer for the Senate Judiciary Committee, which she advised on terrorist-detention policy.

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