Homeland Security

Obama's little secrets on Gitmo closure

Defcon 3: Former Defense Department spokesman J.D. Gordon discusses what may happen if inmates are transferred out of the prison and into the US


What irony. Despite violent jihad sweeping the planet, President Obama is busily preparing another push to close Guantanamo, perhaps even by executive action. So it’s the perfect time to discuss his little secrets:

Secret #1: If and when detainees are moved stateside, judges could release them across America. That’s right, onto Main Street, USA. 

Al Qaeda defense lawyers have always pushed the line of “try them or release them.” Which makes sense for suspected bank robbers, but not for foreign enemy combatants during wartime.

And how’s that?

Because under our Constitution, we have three equal branches of government. Both the Legislative Branch and Judicial Branch have just as much power as the Executive Branch.

But when it comes to locking people up, the Judiciary has traditionally acted as the first among equals, making the final call at the Supreme Court.

Thus our courts will have the final say on detainee incarceration, not the White House. And if other countries won’t take them, then what? Detainees don’t need to escape Supermax if judges let them out.

Since about half the current 112 detainees are held in indefinite detention, activist judges would line up for jurisdiction. We’re talking about Bin Laden bodyguards, bomb-makers, weapons and explosives trainers, recruiters and would-be suicide bombers.

Al Qaeda defense lawyers have always pushed the line of “try them or release them.” Which makes sense for suspected bank robbers, but not for foreign enemy combatants during wartime. 

But even if one argues we’re not at war, the reality is we didn’t have battlefield detectives trailing jihadists in Afghanistan and Pakistan. Which means there isn’t enough admissible evidence to convict most detainees in court. Which means they’re not innocent, just not prosecutable. Each freed Gitmo man is a potential walking nightmare, nearly 1/3 are already confirmed or suspected of returning to terrorism.

So how do we know judges could release them?

Case law -- how judges have ruled in similar circumstances.  Al Marri v. Bush, comes to mind. 

A Qatari national with a U.S. green card, Ali Al Marri was believed to be an Al Qaeda sleeper cell agent trained in advanced poisons to attack reservoirs. After his capture in Peoria, Illinois, he was held at the Naval Brig in Charleston, South Carolina as an enemy combatant. Al Marri’s lawyers argued that President Bush didn’t have the authority to hold him without trial.                            

Well, they won. While terrorism charges couldn’t be proven, Al Marri was convicted of credit card fraud and served time in a civilian prison. He’s now a free man in Qatar.

If Al Marri and his lawyers could beat the federal government, Gitmo jihadists with less evidence against them will too.  

By the way, the White House also misleads the public about Gitmo’s cost. The $3 million per detainee, per year figure, is ridiculously high because of 2,000 troops looking after them.  That’s the same number of troops for the grand total of 780 detainees. Obama deliberately keeps that cost high for cynical talking points.

Americans ought to ask Obama why he would risk freeing hardcore jihadists into our country when he knows so many return to terrorism. Is it because he views Gitmo as a symbol of U.S. overreach and injustice, like they say on campus?  And even beyond keeping radical-Islam inspired terrorists behind bars, is he similarly troubled by controlling 45-square miles of Cuba, land which the Castro brothers call “occupied territory” and have demanded back?

So here’s Secret #2:

Returning Guantanamo Naval Base to the Cubans would help cement Obama’s legacy – the man who “transformed” America.  He extends olive branches to terrorists and dictators, all for little to nothing in return. While that may play well in the faculty lounge, perhaps to atone for America’s sins in centuries past, in the real world, it’s disastrous. Che Guevara would be proud.

As Mr. Obama weakens America with $1 trillion in defense cuts, actual enemies of freedom and human rights in places like the Islamic State, Iran, Russia, China, North Korea and Cuba, get stronger. Is that how he defines hope and change?  

J.D. Gordon is a retired Navy Commander who served as a Pentagon spokesman in the Office of the Secretary of Defense from 2005-09. He serves as senior adviser to several Washington-based think tanks.