Republicans on the Hill are circulating this memo on Obama's decision to move Gitmo detainees to a prison in Illinois:
Having failed to bring the Olympics to Illinois, President Obama will give Illinois an odd replacement gift just in time for the Holidays-al Qaeda terrorists from the Guantanamo detention facility. In announcing this decision, there still remains no explication of how closing Guantanamo makes America safer. Quite to the contrary, unnecessarily importing al Qaeda terrorists into the United States 1) gives them more legal protections, including Constitutional rights, than they have now at Guantanamo, 2) increases the chances they may be released into the country, and 3) in exchange for these significant costs, does not appease the Democratic base, and certainly will not appease al Qaeda.
Importing terrorists from Guantanamo into the United States likely gives them more legal protections than they have now.
It is admittedly unclear precisely what additional legal rights al Qaeda terrorists gain by their presence inside the United States, as opposed to their detention at Guantanamo, but the gain likely is not zero. The Supreme Court has held that "[i]t is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders." The Congressional Research Service (CRS) has observed, "non-citizens held in the United States may be entitled to more protections under the Constitution than those detained abroad." When Guantanamo detainees are moved stateside, they will likely assert broad protections under the Fifth Amendment Due Process Clause, to cover various conditions and elements of their confinement. They may also raise statutory claims regarding religious practices.
Voluntarily bringing Guantanamo terrorists into the United States increases the chances they will be ordered released into the country.
One of the most dangerous possibilities related to the transfer of Guantanamo detainees into the United States is that it may give judges the opportunity to order their release into the United States. Where detainees have sought a court order of release into the country, the main case denying that order turned on the fact that the detainees were outside the country. In that case, a Guantanamo terrorist cleared for transfer asked a federal judge last year to order him released into the United States, which the judge ordered. Thankfully, an appellate judge corrected that error on the grounds that a judge could not order the government to accept someone into the United States from outside the country. It is not clear that the same result obtains once the Administration has voluntarily brought Guantanamo detainees into the country.
Even though the President has confidently declared that he will not release detainees into the United States, he may be confronted with a court order directing just that once the Administration voluntarily brings al Qaeda terrorists to the United States. The bottom line is, even though Democrats state that President Obama would never release a terrorist into the United States, it is no longer exclusively his choice once he voluntarily brings them here. It makes no sense for the political branches to subcontract to the courts the issue of controlling U.S. borders and administering the admission of aliens, especially enemy aliens.
Creating Guantanamo in Illinois will not appease the Democratic base.
It appears that the Thomson correctional facility will be modified to a level of security that is "beyond supermax." Given this description, it seems highly unlikely that those opposed to the Guantanamo facility will accept law of war detentions of al Qaeda terrorists at another facility other than Guantanamo. For example, Michael Ratner of the Center for Constitutional Rights has characterized the President's detention proposals in the past as "closing Guantanamo physically, but repackaging it" elsewhere. The ACLU of Colorado has called Supermax "simply another form of torture."
Creating Guantanamo in Illinois certainly will not appease al Qaeda.
Today's announcement once again raises the canard that closing Guantanamo will remove an al Qaeda recruiting tool, as if al Qaeda would not continue to target the United States for terror attacks once Guantanamo is closed. This argument is belied by all experience with Islamist terrorists, given that the allegedly motivating factor of Guantanamo did not exist at the time of the following:
o 1983: Beirut Marine Barracks bombing, killing 241 U.S. marines
o 1992: approximate beginning of bin Laden's calls to attack United States
o 1993: first World Trade Center attack
o 1995: car bombing at U.S. facility in Riyadh, Saudi Arabia
o 1996: Khobar Towers bombing, killing 19 Americans and wounding 372 others
o 1998: bin Laden issues his "Declaration of War against the Americans"
o 2000: bombing of USS Cole murdering 17 U.S. sailors and injuring 37 others
o 2001: September 11 terrorist attacks murdering 2,973
So who is coming to dinner? - Reviewing the Guantanamo population
It is worth examining the Guantanamo population, part of which is to be moved to the American heartland. Brookings assesses the current detainee population to include, according to the government's allegations:
· 26 members of al Qaeda's leadership cadre (or 12 percent of the total population),
· 90 lower-level al Qaeda operatives (or about 41 percent of the total),
· 8 members of the Taliban's leadership cadre (roughly 3.5 percent of the total),
· 81 foreign fighters (or about 37 percent of the total), and
· 11 Taliban fighters and operatives (or about 5 percent of the total).
Another metric finds that 86 detainees, or about 39 percent of the detainee population, admit some degree of affiliation with terrorist organizations, as alleged by the government.
It will be interesting to see if the Administration is planning to import into the United States either of these detainees, for example:
· Ghassan Abdallah Ghazi Al Shirbi, who has said "I'm going to make this easy and short for you guys, . . . I fought against the United States, I took arms. . . . I'm proud of what I did."
· Abdul Ahmed, who said "I praise the [September 11] attacks. . . . Praise Osama bin Laden. . . . I'm not one of his men and not one of his individuals. I am one of his sons. I will kill myself for him and will also give my family and all of my money to him."
This is in addition to bringing Khalid Sheikh Mohammed and the other leaders of the 9/11 attacks to downtown New York City after they called the military commission charges against them "badges of honor, which we carry with pride," and called themselves "terrorists to the bone."
Hasn't the Senate clearly opposed this move?
Unnecessarily importing al Qaeda terrorists to a prison in Illinois is a direct rebuke of the position once held by the senior Senator from Illinois. On July 19, 2007, Senator Durbin joined with Vice President Biden, Secretary of State Clinton, and Secretary of the Interior Salazar when they were Senators in the 94-3 vote in favor of a resolution expressing the position of the Senate that Guantanamo detainees should not "be transferred stateside into facilities in American communities and neighborhoods." More recently, the Senate voted 90-6 to ensure that Guantanamo detainees would not come to the United States when it adopted an amendment to the war supplemental providing that no funds could be used to transfer or incarcerate any Guantanamo detainee to or in the United States. Senator Durbin switched his position to ensure that al Qaeda terrorists could come to Illinois when he voted against this amendment.
Unnecessarily importing al Qaeda terrorists into the United States is also a direct rebuke to the position expressed by the Senate Majority Leader at a press conference on May 19, 2009. When asked if Guantanamo detainees could be imprisoned in the United States, he replied that "part of what we don't want is them to be put in prisons in the United States. We don't want them around the United States." Asked later at the same press conference if he would "be all right with them being transferred to an American prison," the Majority Leader replied, "not in the United States."
At the end of the day, the President has not explained how this decision makes America safer.
Voluntarily bringing al Qaeda terrorists into the United States is a fantastically bad idea for multiple reasons, as it clearly fails any cost/benefit analysis. The tremendous costs of this decision include increasing the chances al Qaeda terrorists may be released into the United States, and providing them more legal protections than they currently have at Guantanamo.
Balanced against these enormous costs are an unarticulated set of benefits. Most importantly, it does not seem likely that foreign governments, or the Democratic base for that matter, will cease criticizing the United States for its detention policy once Guantanamo detainees are simply moved to Illinois and law of war detentions continue there. Second, it is surely the case that the removal of this supposed recruiting tool will have zero effect on al Qaeda's continued targeting of the United States for attack. Third, the United States remains engaged in an armed conflict with al Qaeda, which means the United States will still likely be capturing al Qaeda operatives and terrorists for some time. Does today's decision mean that al Qaeda operatives captured in the future will now also be imported into the United States to be given Constitutional protections.
Less than one month ago, Senate Democrats had an opportunity to prevent the wholesale importation of al Qaeda terrorists into the United States, but instead chose to reject an amendment to ensure that federal funds would not be used to modify facilities in the United States to bring Guantanamo detainees here. This vote was twelve days after Senate Democrats rejected another amendment to keep the self-proclaimed mastermind of the September 11 attacks and his cohorts in a military commission. The consequences of these votes became obvious today.
