Keep Gitmo Going

Moreover, the Pentagon – acting on orders from President Obama – conducted an investigation into conditions at Guantánamo and concluded that the facility is in full compliance with the Geneva Conventions.[19]  According to the Associated Press, Attorney General Eric Holder, commenting on his own subsequent visit to Guantánamo, described the facility as “well-run” and “professional.”[20]  In light of such assessments, the use of a substantial amount of taxpayer dollars to close the Guantánamo prison facility must be further called into question, particularly when such closure would take place at the expense of public safety and national security.

The closure of Guantánamo also presents a set of formidable legal issues surrounding the transfer of detainees into the United States.  As it stands, the transfer of Guantánamo detainees into the U.S. – including seventeen terrorism-trained Uighurs (Chinese Muslims) recently cleared for release – would violate federal law.  In 2005, Congress amended Section 1182 of Title 8, United States Code, to provide that an alien is “inadmissible” to the United States if s/he has “engaged in a terrorist activity”; “is a member of a terrorist organization”; or “has received military-type training…from or on behalf of any organization that, at the time the training was received, was a terrorist organization.”[21] Because the Uighur detainees in question are affiliated with the East Turkestan Islamic Movement, an al-Qaeda offshoot formally designated by the United States as a terrorist organization, their transfer into the U.S. would violate several provisions of the foregoing statute – as would the transfer of other Guantánamo detainees for similar reasons.[22]

While the very act of transferring these detainees into theUnited Stateswould force the federal government to violateU.S.law, trying Guantánamo detainees in theU.S.civilian court system would present legal difficulties that would either imperil the American effort against global terrorism, or risk the release of extremely dangerous and committed terrorists.  Because these detainees were captured during the course of battlefield hostilities, the government’s case against them necessarily includes evidence that is classified, circumstantial, or otherwise acquired in ways that might make it inadmissible in an American civilian court.  TheU.S.government would therefore be forced to make an impossible decision: either disclose the evidence in full, which would in turn involve disclosure of military and intelligence sources and methods, or decline to disclose such evidence, and risk the release of the detainees as a result.  Either way, it is clear that the civilian system would be ill-equipped to adjudicate the cases of the Guantánamo detainees in a way that would not risk public safety or national security.

Moreover, if Guantánamo is closed, where will the United Stateshold future detainees, including perhaps extremely high-value targets such as al Qaeda leaders Osama bin Laden or Ayman al-Zawahiri?  Will they be brought into theUnited States?

Against the backdrop of these significant concerns, there is a movement afoot in Congress opposing the transfer of Guantánamo detainees into facilities within the United States.  Members of the House and Senate have expressed their vocal opposition to the closure of Guantánamo, including House Minority Leader Boehner (R-OH) and Senate Minority Leader McConnell (R-KY).  Republican leadership in the House have introduced the “Keep Terrorists Out of America Act”, HR 2294, prohibiting the detainees from being transferred to the United States unless a long list of criteria are satisfied.[23]  There are additional pieces of legislation prohibiting the transfer of detainees into specific states, such as Georgia, North Carolina and Oklahoma.[24]  This movement is gaining momentum, with more than twenty pieces of legislation introduced so far in both the House and Senate.[25]