A Question Not Asked

Last night’s presidential debate rightfully put the spotlight on President Obama’s performance over the last four years as commander-in-chief. As informative as the debate was in certain respects, it regrettably did not include discussion of the President’s views on what to do with the remaining terrorist detainees currently being held at Guantanamo Bay. Like his administration’s spectacular mishandling of the Benghazi attack with which last night’s debate opened, recent maneuvering by President Obama and his allies to possibly take another run at transferring terrorist detainees from Gitmo to the United States underscores a troubling reality of a President unable at best, and unwilling at worst, to acknowledge that we are a nation at war with Islamic terrorism.

As has been pointed out, transferring Gitmo detainees to U.S. soil could create an opening for their lawyers and sympathetic judges to give them criminal trials in federal court, complete with the range of defendant-friendly legal protections they provide. That Obama would attempt this highly unpopular transfer yet again is further symptomatic of his failure as a wartime Commander-in-Chief, shown this time through his unwillingness to use military detention — a tool fundamental to the prosecution of a war — despite clear authority from Congress to do so.

Though no one acknowledges that any such transfer is underway, there are several indications pointing in that direction.

Earlier this month, the Department of Justice initiated the purchase of the Thomson Correctional Center, a now-empty state prison facility located in Thomson, Illinois. The reason for the purchase was ostensibly to address overcrowding in the federal prison system, with Sen. Dick Durbin (D-IL) also asserting that the purchase would bring over a thousand jobs to his state. This is the same facility that was on the table as a Gitmo transfer destination back in 2009, and at the time was one of several transfer attempts that collectively sparked fierce backlash throughout the American public and in Congress. The result: several pieces of legislation barring the use of federal funds for the transfer of Gitmo detainees to the United States or for constructing/upgrading U.S. facilities for that purpose. Given this history, the announcement of the purchase has understandably elicited strong reaction from Capitol Hill, notably from Rep. Frank Wolf (R-VA), Chairman of the Commerce-Justice-Science Appropriations Subcommittee (which funds the Justice Department), and Rep. Pete King (R-NY), Chairman of the House Homeland Security Committee, among others. The Obama administration denies it is going to use the Thomson facility for a Gitmo transfer, but as Debra Burlingame’s 9/11 Families for a Safe and Strong America observes, the Justice Department has cracked the door open for such a transfer by citing as part of its purpose for the acquisition: “…as well as to provide humane and secure confinement of individuals held under authority of any Act of Congress, and such other persons as in the opinion of the Attorney General of the United States are proper subjects for confinement in such institutions…” Attorney General Holder, however, is not opening that door all by himself.

It appears that the Chairwoman of the Senate Intelligence Committee, Sen. Dianne Feinstein (D-CA) — a leading proponent of closing Gitmo and bringing its detainees to the United States — is laying some of her own groundwork on this as well. Chairman Wolf has previously indicated that Sen. Feinstein has requested that the Government Accountability Office (GAO) produce an assessment of the extent to which there are facilities in the United States that are suitable for housing Gitmo detainees. The GAO apparently is undertaking such an assessment — which it expects to have completed by November 14, 2012 — and describes it as follows:

MILITARY CAPABILITIES & READINESS

Title: GUANTANAMO BAY DETAINEES: FACILITIES AND FACTORS FOR CONSIDERATION IF THE DETAINEES WERE BROUGH TO THE UNITED STATES (351696)

Type: Congressional

Anticipated Completion: November 14, 2012

Background/Key Questions: In the event that the detention facilities at Guantanamo Bay, Cuba, are closed, facilities in the United States that are suitable to house Guantanamo detainees might need to be identified. Key Questions: 1) What are the characteristics of the Guantanamo detention facilities, and what legal provisions and operational standards are they required to meet? 2) What are the characteristics of DOD correctional facilities, and do existing facilities have the capacity to hold the current Guantanamo population? 3) How does the Dept. of Justice manage individuals in their custody who engage in terrorist-related activities, and do their facilities have the capacity to hold the Guantanamo population? 4) What potential challenges, if any, may affect the ability to house Guantanamo detainees in the U.S.?

Then there is President Obama’s own continued, recently-re-affirmed preference for trying terrorists in criminal courts, despite public outcry objecting to such a course. According to an interview in November’s Vanity Fair, President Obama apparently would have sought to put Osama bin Laden on trial in federal court, had he been captured alive:

…”in the unlikely event that bin Laden surrendered, Obama saw an opportunity to resurrect the idea of a criminal trial, which Attorney General Eric Holder had planned for Khalid Sheikh Mohammed. This time, the president tells Bowden, he was prepared to bring bin Laden back and put him on trial in a federal court. ‘We worked through the legal and political issues that would have been involved, and Congress and the desire to send him to Guantánamo, and to not try him, and Article III.’ Obama continues: ‘I mean, we had worked through a whole bunch of those scenarios. But, frankly, my belief was if we had captured him, that I would be in a pretty strong position, politically, here, to argue that displaying due process and rule of law would be our best weapon against al-Qaeda, in preventing him from appearing as a martyr.'”

If President Obama would have fought to put the founding father and leader of al Qaeda in the criminal court system, rather than place him in military detention and possibly try him by military commission, it would not be difficult for the President to conclude that the current Gitmo detainees — by definition lower on the chain of command than bin Laden but no less avowed enemies of the United States — also should be tried in criminal court. That this statement would be made against the backdrop of a recent purchase of a U.S. facility once on the table for Gitmo transfers, and the GAO’s ongoing work to assess the suitability of U.S. facilities for such transfers, strongly suggests that a transfer may be in the works, the administration’s assurances notwithstanding. And if that’s the case, it underscores this president’s discomfort with framing the war against Islamic terrorism as a war, in which military detention is a basic and indispensable tool.

Defenders of this President’s approach to terrorism will point to his use of drones to eliminate terrorists as proof of his strength as a Commander-in-Chief taking the fight to the enemy. But while individual drone strikes are a justified and often desirable tactic, they cannot fully substitute for a coherent military detention policy that provides for detaining and gathering intelligence from enemy combatants during hostilities and then trying them in a venue suitable to the wartime circumstances of their capture. Former judge and Attorney General Michael Mukasey, when commenting on the drone strike that killed al Qaeda operative Anwar al-Awlaki last year, framed it well:

Why fret about the difficulty of eliciting information from captured detainees, or of detaining them at all, when we have drones available to kill rather than capture? Well, drones are aptly named, in the sense that they do not guide themselves — they need human beings, who need intelligence. If we are to win this war against an enemy that occupies no particular territory, we need intelligence. That can be gathered electronically but electronic wizardry has its limits.

Moreover, there is something amiss about a President who sees his options as either drone strikes or criminal trials when it comes to going after terrorists. At every turn, President Obama has sought to avoid the sensible and militarily valuable middle-ground of military detention, which would maximize intelligence-gathering opportunities while minimizing the legal and security risks that go with criminal trials. The mastermind of 9/11 and his associates are only on trial by military commission at Gitmo after administration delays to the commission proceedings and the failure of the administration to transfer Khalid Sheikh Mohammed and company to New York in 2009. The President’s profound — and profoundly misguided — discomfort with military detention is clear, making it all the more likely that he and his allies are maneuvering to bring Gitmo detainees to the United States, most likely for eventual criminal prosecution in federal court.

Ironically, the Obama administration is sending troubling signals that on his watch, not even conviction and incarceration in the civilian criminal system will guarantee that justice will be served. Several reports have indicated that the administration is contemplating releasing “The Blind Sheikh” Omar Abdel Rahman, the spiritual advisor to the 1993 World Trade Center terrorists, from federal prison, transferring him to Egyptian custody.

If left unchecked now, President Obama and his allies may move in the near future to bring Gitmo detainees to American shores. If that happens, we will be one step closer to losing a war that President Obama does not care to admit we are in, whether we like it or not.