By Gordon Cucullu
Close Gitmo. 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.
While this 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.
The Military 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 Guantanamo.
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.
As cases 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.
If further 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.
Adequate 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.
Resolution 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.
What of 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.
The prospect 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.
It goes 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.
Prior to 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.
Meanwhile, for national security purposes, holding them at Guantanamo is the least worst option.