The Moral Case for Keeping Guantanamo Open

By Jim Bridenstine

Tuesday, January 13, 2015

The Obama administration’s ramped-up efforts to transfer Guantanamo Bay detainees are yet another instance where the president refuses to acknowledge Gitmo’s value and compromises national security. Congress should move to thwart the president’s strategy and retain Guantanamo so American troops do not have to fight the same enemy twice.

In in an open letter in early December, Uruguay’s President Jose Mujica wrote to President Obama, offering to resettle six Gitmo detainees and actually accusing the United States of “kidnapping” detainees. On December 7, American military planes landed in Montevideo with their terrorist cargo. Mujica waited exactly one day to announce his true intentions, telling Uruguayan state TV, “The first day that [the detainees] want to leave, they can leave.”

Uruguay’s Gitmo duplicity perfectly encapsulates how the Obama administration puts left-wing ideology before national security. The president believes that Guantanamo inflames Islamic anti-Americanism and undermines America’s diplomatic relations and moral credibility, the fallacious arguments advanced by his liberal allies. Gitmo is not a legal black hole. All Gitmo detainees are entitled to habeas corpus and may be tried in military-commission proceedings established by Congress. In reality, the Gitmo system is a rational, moral, and perfectly legal institution necessary to deal with a novel problem faced by the United States after 9/11: how to detain, gather intelligence from, and, if required, try suspected foreign terrorists captured on the battlefield. Under the international laws of war, the detainees held at Guantanamo Bay are “illegal enemy belligerents,” not prisoners of war or common criminals with constitutional rights.

Over the last 18 months, the president has expedited detainee transfers. The rush to close Guantanamo comes even though the U.S. director of national intelligence reported that nearly 30 percent of former Gitmo detainees were suspected of or confirmed to be reengaging in terrorism. In June, the president violated the law to swap five high-ranking Taliban terrorists for Sergeant Bowe Bergdahl. As a member of the House Armed Services Committee, I have supported annual limitations in the National Defense Authorization Act (NDAA) to prevent the president from transferring detainees to the United States or to terrorism-prone countries unable to monitor and secure them, namely Yemen. Successive NDAAs have included a simple 30-day congressional notification to accompany all transfers. We want to know who these people are, where they are going, what the risks are, and how the recipient countries will ensure they do not return to the battlefield. But the president’s ideological ferocity overwhelmed his constitutional responsibility to follow the law. He ignored inconvenient but clear statutory obligations and the constitutional separation of powers, an all-too-familiar pattern.

The State Department’s former Gitmo envoy, Cliff Sloan, revealed the president’s strategy last week in the New York Times: 127 detainees remain at Gitmo. Interagency reviews have approved 59 of the 127 for transfer. The administration will transfer the 59 supposedly “low-level” detainees in tranches, many in the coming weeks. Gitmo will then only hold 60 to 80 detainees, those deemed too dangerous to try by commission, transfer, or release. At that point, the president will ask Congress to permit Guantanamo transfers to maximum-security prisons inside the United States. He will subsequently ignore or veto any congressional attempts stop him in the NDAA or Defense appropriations bills. He will use his “pen and phone” and act through executive fiat.

We know what Congress should do. The Armed Services Committees should once again prohibit detainee transfers to the United States and mandate that detainees be transferred only to third-party countries that agree to enforce rigorous monitoring and travel bans. The problem is not detainee transfers per se but the weak agreements consistently struck between the United States and recipient countries. Many of the reengaged terrorists were placed in so-called “rehabilitation” programs or not subjected to intense monitoring and travel bans. In fact, the administration just added one Saudi terrorist rehab alumnus to its list of specially designated global terrorists. Such a poor record shows that the administration is cutting irresponsible deals in an effort to fulfill a campaign promise and satisfy an ideological base.

More importantly, members of Congress need to make the moral case for keeping the Guantanamo option open for future presidents who might place a higher priority on national security than this president’s leftist “lead from behind” ideology. As a naval aviator and combat veteran of Iraq and Afghanistan, I have an obligation to educate other members on this issue.

Despite the Obama administration’s wishes, the Islamic State’s presence portends a global fight against Islamist terrorism into the foreseeable future. The Guantanamo system provides the option to detain foreign suspected terrorists captured on the battlefield and try them using specially designed military commissions. The president refuses to capture and detain, so he continues to use his only other option: Execution by drone. Targeted assassination is not morally superior to capture and detain (and it undermines prospects for intelligence gathering).

The more pressing moral concern involves keeping the American people and our deployed troops safe from those we have released from Gitmo. The case that responsible conservatives must make to the American people is simple and persuasive: Making our troops fight the same enemy twice is completely immoral.