Dec 29 2010
Guantanamo
The Collapse of the Guantanamo Myth
This week a Democratic Congress ratified Bush-era policy by refusing to fund any effort to shut the detention facility.
By JOHN C. YOO
AND ROBERT J. DELAHUNTY
WSJ.com
http://online.wsj.com/article/SB10001424052748704457604576011390769140846.html
When announcing in 2002 that the U.S. would detain al Qaeda fighters at Guantanamo Bay, Cuba, then-Defense Secretary Donald Rumsfeld famously described the base as “the best, least worst place.” Mr. Rumsfeld’s quip distilled a truth: The U.S. would capture enemy fighters and leaders, and their detention, while messy, was of great military value.
For two years, President Barack Obama has pretended that terrorism is a crime, that prisoners are unwanted, and that Gitmo is unneeded. As a presidential candidate, he declared: “It’s time to show the world . . . we’re not a country that runs prisons which lock people away without ever telling them why they’re there or what they’re charged with.” Upon taking office, he ordered Gitmo closed within the year.
But the president’s embrace of the left’s terrorism-as-crime theories collided with his responsibility to protect a great nation. Now the reality of the ongoing war on terror is helping to shatter the Gitmo myth and end its distortion of our antiterrorism strategies.
This week the intelligence community reported to Congress that one-quarter of the detainees released from Guantanamo in the past eight years have returned to the fight. Though the U.S. and its allies have killed or recaptured some of these 150 terrorists, well over half remain at large. The Defense Department reports that Gitmo alumni have assumed top positions in al Qaeda and the Taliban, attacked allies in Iraq and Afghanistan, and led efforts to kill U.S. troops.
Associated Press
Former Defense Secretary Donald Rumsfeld famously
described Guantanamo Bay as “the best, least worst place.”
Even that 25% recidivism rate is likely too low. The intelligence community reports that it usually takes about two and a half years before a released detainee shows up on its radar. Our forces probably have yet to re-engage most of the terrorists among the 66 detainees released so far by the Obama administration.
The Bush administration released many more, but those freed by this administration are likely more dangerous. Contrary to the Gitmo myth, innocent teenagers and wandering goat herders do not fill the base. Last May, an administration task force found that of the 240 detainees at Gitmo when Mr. Obama took office, almost all were leaders, fighters or organizers for al Qaeda, the Taliban or other jihadist groups. None was judged innocent.
All of this is having an impact on Congress, which this week voted overwhelmingly to de-fund any effort to shut down the Gitmo prison. It also barred the Justice Department from transferring detainees to the U.S. homeland. Despite Attorney General Eric Holder’s rush to put Khalid Sheikh Mohammed on trial in downtown New York, the planners of the 9/11 attacks will stay put.
Congress is reflecting the wishes of the American people. In the Gitmo myth, President George W. Bush was a Lone Ranger acting without Congressional permission, and Gitmo was a law-free zone. But the American people never opposed capturing and detaining the enemy. And now Democratic Congress has ratified Mr. Bush’s policy.
Freezing the Gitmo status quo will stop the release of al Qaeda killers, but it won’t end the serious distortions in Mr. Obama’s terrorism policy.
The administration relies on unmanned drones to kill al Qaeda leaders hiding in Pakistan and Afghanistan. CIA Director Leon Panetta calls it “the only game in town.” Drones take no prisoners, but they also ask no questions. Firing missiles from afar cannot substitute for the capture and interrogation of al Qaeda leaders for intelligence. (The real question now is whether CIA agents will decline to interrogate prisoners, thanks to Mr. Holder’s criminal investigations into Bush policies.)
As long as no one is sent to Gitmo, the Obama administration will leave itself two options for dealing with terrorists: kill, or catch-and-release. Mr. Obama’s drone-heavy policy means that more people will die—not only al Qaeda and Taliban fighters, but also innocent Afghan and Pakistani civilians.
The Gitmo myth also drove the Justice Department’s push to prosecute al Qaeda leaders in U.S. civilian courts. Nowhere else did the Obama administration place its view of terrorism more clearly on display as a law-enforcement problem. The near-acquittal of Ahmed Ghailani, the al Qaeda operative who facilitated the 2000 bombing of the USS Cole, by a New York jury last month has clearly revealed that path as a dead end—even if Mr. Holder remains in denial.
The simple alternative is to continue detentions at Gitmo. Detention is consistent with the rules of war, which allow captured combatants to be held indefinitely without requiring criminal charges to be filed. It also keeps our troops and agents in the field focused on finding and killing the enemy, not on collecting evidence and interviewing witnesses.
Using its constitutional power of the purse, the new Congress should continue to keep Gitmo in operation. It should press President Obama to resume the capture, detention and interrogation of al Qaeda leaders. It should also educate the public about the real state of affairs in Guantanamo: The military has spent millions to create a model facility.
Most importantly, Congress can use its oversight power to probe the decision-making that led to the release of the 150 or more recidivists. It can require a full accounting from the military and intelligence agencies of the harms caused by released detainees, and it can bring to light the risks that these bureaucratic mistakes will pose to American lives.
After the left’s long denunciation of Bush-era policies, Mr. Obama should admit that he has made his share of mistakes—not the least of which has been propagating the Gitmo myth. If Americans die at the hands of released detainees, we will know who to blame.
Mr. Yoo is a law professor at the University of California, Berkeley, and an American Enterprise Institute scholar. Mr. Delahunty is an associate professor at the University of St. Thomas School of Law in Minneapolis. Both served in the Justice Department under President George W. Bush.