Gitmo Follies

Obama’s Justice Department should ask Obama’s State Department about jailing jihadists.

Andrew C. McCarthy
Saturday, December 11, 2010

Attorney General Eric Holder is dismayed over Congress’s refusal to cough up funds that would allow the Obama administration to close down Guantanamo Bay and transfer the 170 fire-breathing jihadists still detained there to the United States — where, he insists, they’ll be kept under lock and key.

P. J. Crowley, the State Department’s assistant secretary for public affairs, is dismayed, too. He claims that federal judges are ordering the release of fire-breathing jihadists in droves, purportedly requiring that we free them out from under lock and key — whereupon they return to the anti-American jihad at an alarming clip, a totally predictable outcome Mr. Crowley says the Obama administration totally predicted.

Do these guys ever talk to each other?

Just to recap, the Obama administration, like the Bush administration before it, is extremely sensitive about Gitmo. Yes, the facility is a perfectly secure, offshore military detention center that has safely yet humanely sidelined hundreds of trained terrorists whose highest ambition is returning to the business of killing infidels. But the detention center has been the source of ceaseless sniping by our great friends in the “international community,” which can make for testy times at high tea, a fact that is of apparently greater importance than neutralizing jihadists.

Thus did the Bush administration agree with these friends that Gitmo should be closed. As is his wont, President Obama exacerbated his predecessor’s mistake with an ill-advised promise to shut the place down, notwithstanding the absence of any plan for disposing of the terrorists lodged there. Egged on by the State Department, which bears the brunt of the aforementioned sniping, both administrations made lunatic agreements under which various countries accepted dribs and drabs of Gitmo’s murderous population.

To the layman, untutored in the wiles of statecraft, it seemed a terrible idea: springing enemy fighters, even as war was still raging, when they could have been kept on ice in the Caribbean sunshine. But don’t fret, the diplomats told us, we have Grade-A precautions in place. One of those turned out to be a Saudi rehab program in which scholars of Wahhabism, the official ideology of both Riyadh and al-Qaeda, will convince the jihadists that they have jihad all wrong. And the diplomats omitted mention of the bribes and blandishments the Obama administration has offered such powerhouse allies as Kiribati, Slovenia, and Belgium, to take some of the jihadists off our hands.

Now the intelligence community tells us — mirabile dictu – that at least 150 Gitmo grads have gone back to “terrorist or insurgent activities.” That’s a 25 percent recidivism rate, and it’s probably both understated and rising.

To better understand these developments, Fox News called on Mr. Crowley, an admirer of many Islamic regimes who is nevertheless comfortable blasting the state of Arizona over its attempt to enforce federal immigration laws. Crowley first grossly misstated the pertinent facts, intimating that the recidivists had been ordered released by the courts. In fact, most of the hundreds of former detainees were released pursuant to diplomatic agreements, the lion’s share of them during the Bush years, when the Gitmo population was more than four times its present level.

Furthermore, federal judges have no authority to order detainees released. It is true that, in several cases, the judges have ruled that the military designation of a detainee as an enemy combatant was based on insufficient evidence. Ruling on the validity of that designation, however, is the limit of the judicial role. Neither Congress, in giving federal appeals courts an unprecedented power to review wartime detention, nor the Supreme Court, in extending that power to the lower courts, purported to endow the judges with the power to order the release of terrorists held at Gitmo. Once a judge strikes the designation, it is for the executive branch to decide whether to appeal, detain on alternative grounds, or try to find a country willing to accept custody.

It is the Obama administration that has effectively given the courts the power to unloose jihadists. According to Crowley, vacating the combatant designation is the same as directing release. This, the Obama administration holds, is what “the rule of law” dictates. Don’t look at the president, he says, it’s the courts that run the show, and if they say spring ’em, the terrorists must be sprung — even if we all know that means they go right back to the fight.

Indeed, Crowley claims this is not only a necessary result but a result that was fully anticipated. As he put it, the administration “actually expected this” growing recidivism but opted to release the jihadists, anyway.

Since leaving Gitmo, some alumni have carried out savage attacks, killing scores of people. Others are now high-ranking figures in al-Qaeda’s network: Their credentials burnished by a stint in U.S. detention, they now coordinate operations against U.S. troops.

Yet, though it expects one in four detainees to return to the jihad, the administration has no plans to change its approach, except for this: Attorney General Holder says the president still wants Gitmo closed and the trained jihadists brought into the United States. If the administration has its druthers, stateside is where they’ll be as judges continue to review their combatant status.

That means this is where they’ll be when judges vacate combatant designations, which the administration claims means they must be released, which enables the terrorists to go back to the jihad, which the administration fully expects them to do.

I wouldn’t hold my breath waiting for the new Congress to help the president close Gitmo.