Closing Gitmo -- A Dangerous Decision: Are al Qaeda and Taliban Coming to a Prison Near You?


Closing Gitmo -- A Dangerous Decision: Are al Qaeda and Taliban Coming to a Prison Near You?

Mar 30th, 2009 11 min read
Peter Brookes

Senior Fellow, National Security Affairs

Peter helps develop and communicate The Heritage Foundation's stance on foreign and defense policy through his research and writing.

[A]l Qaeda remains intent on attacking U.S. interests worldwide, including the U.S. homeland.

-- Dennis Blair, director of National Intelligence, February 2009

On only his second day in office, newly minted President Barack Obama promulgated an executive order closing the terrorist detention facility at Guantanamo Bay Naval Base on the island of Cuba within one year -- if not sooner.

Unfortunately, President Obama's decision to close Guantanamo Bay -- known affectionately by sailors for years as "Gitmo" -- seems little more than a symbolic sop to domestic and international critics of the War on Terror.

It also means that some of those held may be released, repatriated to their native land or transferred to third countries, leaving open the possibility of a return to the battlefield.

Worse yet, others, who are deemed too dangerous to be released, may be transferred to prison facilities in the United States for detention, opening a Pandora's box of potential terrorist nightmares for local citizens.

In this case, the rush to fulfill a campaign promise could be a dangerous thing.

Objectionable Order

Obama's executive order of Jan. 22, 2009 -- which, by the way, doesn't require congressional approval -- makes the following judgment:

"In view of the significant concerns raised by these detentions, both within the United States and internationally, prompt and appropriate disposition of the individuals currently detained at Guantánamo and closure of the facilities in which they are detained would further the national security and foreign policy interests of the United States and the interests of justice."

The order also sets up a task force of senior government officials to study where Gitmo's nearly 250 detainees, mostly Taliban or al Qaeda, should go when the center is closed next year, as well as what kind of court should hear their cases.

A long-standing debate has raged as to whether the detainees are entitled to the same legal rights as those afforded Americans, rather than being tried by military commissions, a system that has now been suspended under the order.

Beyond the military commissions, other options being considered include trying the detainees in U.S. federal courts, traditional courts martial, "upgraded commissions" or a new national security court.

The executive order also stipulates: "If any individuals covered by this order remain in detention at Guantanamo at the time of closure of those detention facilities, they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States."

When asked about the order after its promulgation, Obama shockingly told NBC: "Can we guarantee that they [the detainees] are not going to try to participate in another attack? No. But what I can guarantee is that if we don't uphold our Constitution and our values that over time that will make us less safe. And that will be a recruiting tool for organizations like al Qaeda."

Of course, not everyone agrees with the new president's call.

In February, former Vice President Dick Cheney said the Obama administration is risking our security by closing the Gitmo detention facility, telling, "When we get people who are more concerned about reading the rights to an al Qaeda terrorist that they are with protecting the United States against people who are absolutely committed to do anything they can to kill Americans, then I worry."

"If you release the hard-core terrorists that are held at Guantanamo," Cheney added, "I think they go back into the business of trying to kill more Americans and mount more mass-casualty attacks. ... If you turn 'em loose and they go kill more Americans, who's responsible for that?"

Cheney insists that holding these terror suspects has thwarted terror attacks and saved American lives in the past. "If it hadn't been for what we did -- with respect to the terrorist surveillance program, or enhanced interrogation techniques for high-value detainees," Cheney said, "the Patriot Act and so forth -- then we would have been attacked again."

"Protecting America is a tough, mean, dirty, nasty business ... and we're not going to win this fight by turning the other cheek," the former Vice President admonished the new administration.

While popular with some, Obama's decision doesn't settle well with others, especially some 9/11 victims' families, who have a keen interest in the fate of the al Qaeda terrorists.

According to a Washington Post report, one family member said, "In his first official act as commander in chief, Mr. Obama has offered up the lives of almost 3,000 Americans on the ACLU's [American Civil Liberties Union] altar of political correctness and emboldened a ruthless enemy."

The brother-in-law of a fireman killed at Ground Zero on 9/11, himself a firefighter, told the New York Post, "The terrorists are going to be cheering. ... It sends a chilling message to people who are trying to fight the War on Terror."

Representative Peter King, R-N.Y., ranking member on the House Homeland Security Committee, told the same newspaper that he was concerned Obama may go soft on terror despite the fact that "[w]e live in a dangerous world."

Even a Times of London editorialist wrote, "Obama does not want to be the president who presides over the release of Khalid Sheikh Mohammed, the self-proclaimed architect of 9/11. That would make nonsense of his vow to redouble the hunt for Osama bin Laden."

But it's more than symbolism that's at stake.

Recidivism Rages

In January, the Pentagon reported that as of December 2008 at least 60 former Guantanamo detainees who were released from the facility have returned to terrorism. (Gitmo has held nearly 800 enemy combatants since 2002; more than 500 have been released so far.)

Nearly 20 former detainees are confirmed as "returning to the fight" and another 40 are suspected, according to the Defense Intelligence Agency, which uses fingerprints, DNA and photographic evidence to make such judgments.

Some question whether the number 60 is too high, while others think the number of recidivists is even higher. Assuming the figure 60 is correct, this represents an 11 percent recidivism rate, up from 7 percent in March 2008.

The left-wing American Civil Liberties Union called the Pentagon report an admission of Gitmo's failure and a Defense Department "fear-mongering campaign" meant to justify holding detainees indefinitely.

While the actual number is debatable, one must remember the fact that it took only 19 terrorists to end the lives of nearly 3,000 people from more than 90 countries on 9/11. They had planned to take more.

Adding to concern, in early February, Saudi Arabia reported that 11 Saudis who were transferred from Guantanamo -- and then passed through a Saudi jihadist rehabilitation program -- have fled Saudi Arabia and re-joined terrorist groups.

(Three other Saudis, released to Riyadh from Gitmo, can't be located.)

One of the 11 recidivist Saudis, Said Ali al Shihri, became al Qaeda in Yemen's No. 2, according to an Internet video on a jihadist web site. (Yemeni al Qaeda is believed to be aligned with al Qaeda in Saudi Arabia.)

Besides urban-warfare training in Afghanistan at al Qaeda training camps, al Shihri facilitated the transit of jihadis moving through Iran into Afghanistan to battle Afghan, U.S. and Coalition forces.

It's also believed al Shihri was involved in the attack on the U.S. embassy in Yemen's capital city of Sanaa in September 2008 in which al Qaeda masqueraded as local police to explode car bombs.

The attack's target was reportedly the U.S. ambassador to Yemen, who escaped harm, but 16 people, including the attackers, were killed in the strike in a country that is under increasing pressure from al Qaeda.

(Alarmingly, a number of senior terrorists have "escaped" from Yemeni jails under suspicious circumstances, likely adding to the strength of al Qaeda in Yemen, which is looking to expand its operations off the Arabian Peninsula into the Horn of Africa.)

Despite this increased threat, the Obama team seems hopeful that closing Gitmo will improve America's standing in the world.

PR Problem

Deserved or not, Gitmo has had a public relations problem since its opening in 2002. It has been a lightning rod due to allegations of mistreatment, including the two cases where detainees were subjected to "enhanced interrogations" in 2003.

Despite living in extraordinary times after 9/11, critics claim Gitmo is an abuse of U.S. government power -- and evidence of America losing its moral bearings and credibility as the leader of the free world.

Starting in 2005, the Bush administration went out of its way to provide transparency to both domestic and international audiences about Gitmo through countless sponsored visits and the like.

The effort succeeded in changing the dialogue from care and treatment of detainees at Gitmo to whether they could be held indefinitely. But the demands, in some quarters, to close the facility never abated.

Human rights groups and civil liberties advocates who beat the drum to "try them or set them free" continue to rail against Gitmo, affecting international perceptions of the United States across the globe.

Indeed, this is a major motivating factor behind the Obama White House's decision to close the facility: To re-take the moral high ground with Gitmo's critics by shuttering the facility once and for all.

But closing Gitmo for public relations purposes doesn't change the fact that the United States has a legitimate right to detain combatants fighting against it during a conflict, protecting American lives by preventing their return to battlefield.

The security rationale for keeping Gitmo open is as strong today as it ever was.

Some of those captured and held may have Intelligence value that could help lead to the capture of al Qaeda leader Osama bin Laden and his deputy, Ayman al Zawahiri, arising from interviews and legal interrogation.

So what is going to be done with those currently at Gitmo?

Dispersing Detainees

Of the approximately 250 terrorists or terror suspects held at Gitmo, the Pentagon has cleared 50 or more for release. Whether these would return to the battlefield is anyone's guess. Another 80 or so could be judged in a criminal trial.

But the Pentagon also notes that more than 100 of the detainees should never be released due to their potential danger to the United States and its interests, including that of its allies and friends.

Some detainees have already been cleared for release but remain at Gitmo due to concerns that they would be persecuted or tortured upon repatriation to their country of origin. (Chinese Uighurs, who have ties to the East Turkestan Independence Movement, a terrorist-separatist group involved in a low-level insurgency in Western China, is one such group of detainees.)

Despite the recidivism rate of those who have actually been released, several proponents of the Gitmo closing have even advocated the deeply troubling idea that some or all of the detainees deemed releasable be brought to the United States, where they might apply for asylum and eventually citizenship.

So that leaves those who are deemed too dangerous to be released. What is going to be done with them once Gitmo closes? The "try them or set them free" notion is a false -- and dangerous -- choice.

Moving them to a third country is an option, if a third country capital would accept them. Depending on the location, it could be expected, based on history, that sympathy or corruption among prison officials or jailbreaks could lead to the release of deadly operatives. (The Yemeni escapes are a perfect example, exacerbated by the fact that 100 of the 250 detainees at Gitmo are Yemeni.)

The European Union has also made some rumblings about its members' willingness to help with the closing of Gitmo by absorbing a number of releasable prisoners. Of course, one has to wonder who will keep an eye on them.

There's also the possibility of bringing the "worst of the worst" detainees to facilities in the United States. It's likely that few, if any, Americans, even those opposed to Gitmo, want the detainees re-located anywhere near them for fear the detainees will get loose in their vicinity.

Since those being held at Gitmo are unique -- and given the extent to which the U.S. government has gone to accommodate their special needs -- some have expressed concerns about the cost of developing new facilities to hold the detainees.

A number of lawmakers have opposed such a move, including introducing a bill in Congress to prohibit Gitmo detainees from being released or transferred to the United States.

It is no surprise, then, that Sen. Sam Brownback, R-Kan., opposed using the Ft. Leavenworth military prison as a replacement facility for Gitmo or that Sen. Kit Bond, R-Mo., wondered who would be "thrilled" to have al Qaeda living down the street.

But what about those combatants detained by our forces after Gitmo closes next year?

Future Foes

Obama's executive order deals squarely with Gitmo as it is today, but it's assumed the Obama administration, especially with its new emphasis on Afghanistan, won't be ending detention as a practice due to its importance to military operations.

Of course, future captures will have to be interrogated for operational Intelligence as well as prevented from returning to the battlefield against U.S. forces or interests -- a key objective.

Fortunately, during their confirmation hearings, Obama's attorney general and solicitor general nominees -- Eric Holder and Elena Kagan, respectively -- both agreed before Congress that enemy combatants could be held without trial as war prisoners. In fact, while the White House has distanced itself from the term "War on Terror," both Holder and Kagan acknowledged that the United States was at war with al Qaeda. In his inaugural address, Obama also said we're at war.

While testifying separately, Holder and Kagan suggested the law of war allows the U.S. government to capture enemy combatants and hold them without charges to prevent them from returning to the battlefield against American troops.

With the end of the Gitmo detention mission, it's clear the Obama administration is going to have to continue some of the Bush administration's more "controversial" practices such as military detention -- despite its overheated campaign rhetoric.

In the end, according to Charles Stimson, former deputy assistant secretary of Defense for Detainee Affairs, "shuttering detention operations at Guantanamo Bay will be only a symbolic gesture -- or perhaps not even that -- if the Obama administration does not also address the broader challenge of lawfully incapacitating terrorists who are intent on waging war against us."

Closing Gitmo is a gamble, which appears to value form over substance -- international approval over national security. It could bring steep political costs for Obama if it fails -- and catastrophic costs for our well-being, too.

The Obama White House must bear in mind that Bush administration counterterrorism policies, while not perfect, were effective in keeping this nation safe from terrorist attacks after 9/11 -- now nearly eight years ago.

That significant -- and not cited enough -- achievement wasn't accomplished just by chance: Detentions at Gitmo and the Intelligence gained there were some of the building blocks of our security.

While the idea of "try them or set them free" resonates with the ACLU and some of Obama's supporters, many others such as the liberal Center for American Progress have rejected the concept, recognizing the need for some form of military detention.

No nation can have a veto over our national security -- and we must be cautious about outsourcing it to other countries, which may not share our perception of the threat from individuals or groups, especially to the United States.

As some have said, delegating our counterterrorism responsibilities to others may help us skirt tough legal and moral questions, but, ultimately, it may increase our vulnerability to terrorist attack at home and abroad.

No country will look after America's security like America.

Defending his stance on closing Guantanamo, President Obama asserted: "I have to make the very best judgments I can make in terms of what's going to keep the American people safe ... what's going to uphold our Constitution and our traditions of due process ... and what I'm convinced of is [that] we can balance those interests in a way that makes us all proud, but also assures we're not attacked.

But Rep. Peter Hoekstra, R-Mich., ranking member on the House Intelligence Committee, said: "This is an executive order that places hope ahead of reality -- it sets an objective without a plan to get there."

Unfortunately, that may be so -- and it is a concern we must all vigilantly guard against.

Peter Brookes is senior fellow for National Security Affairs in the Davis Institute at The Heritage Foundation.

First appeared as the cover story for Townhall Magazine, April 2009