Gitmo's Underlying Problem

President-elect Obama has promised to close the terrorist detention facility at Guantanamo (Gitmo) Bay, Cuba even though the alternatives are unattractive.  But before he shutters that facility the new president must resolve the underlying problem that made Gitmo infamous.

The problem that torpedoed Gitmo was the government’s failure to identify the appropriate means to handle captured terrorists who haven’t committed a "crime" but undoubtedly would if left free to roam.  To what legal process are these terror suspects entitled if they are going to be detained long-term?

Otherwise, the legal issues related to Gitmo have been resolved by three Supreme Court rulings, federal laws like the Detainee Treatment Act of 2005, which enacted our long-standing policy regarding treatment of detainees, and administration policies like the Department of Defense Detainee Program that prescribes the minimum standards of care for detainees in accordance with Common Article 3 to the Geneva Conventions.

Today, Gitmo is a legally accountable and a state-of-the-art detention facility.  Detainees have recreation facilities, world-class medical care, culturally appropriate meals, and their cases are reviewed annually.

President-elect Obama has pledged to close Guantanamo primarily because Gitmo’s image has been tarnished by negative media reports.  Its critics hope closing the facility will create a global wave of diplomatic and popular goodwill that could accelerate the transfer of some detainees to other countries and improve America’s reputation.

The U.S. has transferred or released more than 500 detainees.  Today, 250 remain, and many of those could be released to their home countries if we could be assured the detainees will be maintained in custody and treated humanely.  Our concern is that some former detainees have been released and then returned to the fight.

At least 37 former Gitmo detainees have done exactly that.  Abdullah Salim Ali al-Ajmi, a Kuwaiti man, was originally detained in Afghanistan and spent three years at Gitmo before being released in 2005.  Al-Ajim returned to Kuwait, but in May 2008, he traveled to Iraq, where he became a suicide bomber.

The U.S. doesn’t want to transfer all detainees, however.  Some are suspected of committing war crimes and should be tried and punished if found guilty.  Others likely can’t be successfully tried but are too dangerous to release.  Both groups are the subject of considerable discussion within the Obama camp.

One option is to bring both groups to the U.S.  "I think the answer is going to be, they can be as securely guarded on U.S. soil as anywhere else," said Laurence Tribe, a Harvard law professor who serves as a legal adviser to Obama.

But some Bush administration lawyers believe moving the terrorism suspects to American soil could increase their constitutional and statutory rights and thus invite an explosion of civil litigation.  In fact some detainees could soon win their freedom through habeas corpus [contest detention] petitions to roam our communities waiting for trial or a country to accept them.

In June, the Supreme Court ruled in Boumediene v. Bush that Gitmo detainees are entitled to seek their freedom through federal habeas corpus cases.  This ruling has opened the door for more than 200 claims to include one that may soon release 17 Chinese Uighers captured in Afghan terrorist training camps.  The Uighers are a Muslim-Turk ethnic opposed to Chinese government control of their native region.

Last month, federal judge Ricardo Urbina demanded that the Bush administration produce the Uighers in his courtroom.  The judge said he intended to release them to the Washington, D.C. Uigher community.  Fortunately, the 4th Circuit Court of Appeals issued an emergency injunction blocking their release.

Taxpayers will have to build a special detention facility if the Gitmo detainees are brought to America.  They can’t be housed with convicted American criminals because the Gitmo detainees haven’t as yet been tried.  Then there’s the problem of location.  Siting a terrorist detention facility would be a major political football which no one wants because it would inevitably become ground zero for terrorist sleeper cell attacks.

President-elect Obama has said the U.S. civilian and military court-martial systems would provide a framework system to handle detainees brought to America.  His "hybrid" court system would be used to try up to 80 of the detainees for war crimes.  Currently, 18 detainees are charged before military commissions.

It’s unlikely Obama’s hybrid court system would survive Supreme Court challenges any better than the Bush administration’s enemy combatant tribunals and military commissions process.  In fact, there is bipartisan resistance to Obama’s hybrid system because it would treat terrorism as a mere crime and grant terror suspects captured on the battlefield the same legal rights and protections as Americans.

Likely, most of the detainees would walk if tried by Obama’s hybrid court system because the government has insufficient admissible evidence.  The detainees have been treated as combatants and not criminals.  They were not read Miranda rights.  All were questioned without attorneys present.  The soldiers who captured them were not concerned with preserving the chain of custody of evidence or proving beyond a reasonable doubt their guilt.

Granting the detainees legal rights in a U.S. court could also jeopardize our war effort.  Civilian due process rules, which give defendants discovery rights, would grant the detainee access to the intelligence needed to prove the government’s case and other intelligence needed to defend against charges.  The government avoided this problem in the "dirty bomber" case against American citizen Jose Padilla by dropping charges that relied on classified information.

The final group of detainees haven’t necessarily committed a "crime" by Obama’s hybrid court’s standard but undoubtedly would if left free to roam.  Among this group are terrorist trainers, bomb makers, recruiters and facilitators, terrorist financiers, and potential suicide bombers.  We can only try someone for war crimes if they have already perpetrated the act, not if they have financed it, supported it, produced propaganda for it or said they intended to participate.

Mohammed al-Qahtani is typical of this group.  He is suspected of planning to be one of the Sept. 11 hijackers. Qahtani’s case has been allegedly tainted by "torture" and is therefore difficult or impossible to prosecute.  Preventing people like Qahtani from following through with their intent is a critical aspect of the war on terror.

President-elect Obama will soon discover that while many want Gitmo closed, few offer viable alternatives and scarcely any nations have assisted in accepting detainees of other nationalities.  That leaves America with a lot of terrorists to house, possibly for decades.

Gitmo may be a black eye on our image abroad but it serves two critical functions — it keeps the terrorist killers off our battlefields, and it keeps America’s streets safer.  Bringing terrorists to the U.S. and granting them the rights of citizens in hybrid courts based on civilian criminal standards with civilian due process rules is the wrong way to redeem our reputation.

Soon to be commander-in-chief Obama must put America’s interests above that of terrorists.  Our military, intelligence and law enforcement services need facilities and the legal tools to capture and detain terrorists as well as terrorist supporters like Qahtani who are conspiring to kill thousands of innocent Americans.