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Congressional GOP Memo on Moving Gitmo Detainees to Illinois

1:26 PM, Dec 15, 2009 • By JOHN MCCORMACK
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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