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Detainees kneel during early morning Islamic prayer on October 28, 2009 in Guantanamo Bay, Cuba. (John Moore/Getty Images)

Why Hasn't Obama Closed Gitmo?

Arthur Herman

On February 2, 2015, a Hellfire missile struck an automobile traveling along a rutted road in Helmand Province, Afghanistan. It killed six men inside—four Pakistanis and two Afghans, Abdul Rauf and his brother-in-law. A former top Taliban commander and recruiter, Rauf was, according to Afghan intelligence, making a switch of allegiances from the Taliban to ISIS, for whom he had become acting head in Northwest Afghanistan.

Rauf was notable for another reason. He had been commander of Taliban leader Mullah Omar’s elite mobile force during the U.S. invasion of Afghanistan in 2001. U.S. troops captured Rauf and shipped him off to the newly established terrorist detention center at Guantánamo Bay, Cuba. In late 2007 he was transferred from Gitmo to Kabul. U.S. officials had deemed Rauf of “medium intelligence value,” and Rauf had convinced his captors that his one desire was to go home and tend his farm. Rauf quickly gave his Kabul jailers the slip and took up the jihadist cause instead—most recently, it seems, under the ISIS banner.

He’s not alone. In 2009, two months after President Obama took office, an unclassified government report concluded that of the 530 Gitmo detainees released since the camp’s creation some 14 years ago, 27 had been confirmed, and another 47 suspected, of re-engaging in terrorist activity. Since then the number of confirmed recidivist cases has steadily swelled to more than 116, with another 69 suspected of re-engaging.

One of Barack Obama’s first acts as president was the signing of an executive order on January 22, 2009, mandating that Gitmo close within a year and declaring that its prompt shuttering “was consistent with the national-security and foreign-policy interests of the U.S. and the interests of justice.” At the same time, the president ended the use of “torture” and appointed a task force to assess the overall status of the detainees and decide how many ought to be transferred or released. The media and liberal Democrats burst into applause. Representative John Murtha of Pennsylvania said, “The problem with Guantánamo is that its very existence strains and defies the moral fiber of our great nation.” The president himself added, “It makes no sense to keep open a prison that the world condemns.”

Yet, astonishingly, in six years, Obama has failed to enforce that order. While he has managed to reduce the prison facility by more than half its occupants, from 240 to 128, the pushback from Congress, the intelligence community, and the American public against closing Gitmo altogether has been continuous and palpable—and it seems, effective. Indeed, keeping Gitmo open—or at least preventing the transfer of its prisoners to the United States—is one of the few issues regarding the war on terror around which a healthy bipartisan consensus on Capitol Hill can be organized. It is also one of the very few matters Obama has backed away from using his sweeping interpretation of executive authority. Meanwhile, at least six of the Gitmo detainees released by Obama have been confirmed as being back on the terror battlefield, and another 20 or 30 former Gitmo inmates (including men released by the Obama administration) are suspected of fighting for ISIS in Syria.

All this would suggest that despite Obama’s words, some do see the sense of keeping Gitmo open, including the president himself—although he refuses to acknowledge it. In his 2015 State of the Union address, the president insisted: “I will not relent in my determination to shut it down. It’s not who we are.” Sure it is; Guantánamo has been open for 13 years and five months. He has been president for nearly half that time.

When the administration first began bruiting the idea of transferring the Gitmo inmates from Cuba to prisons in the United States—“That’s what closing Guantánamo is about,” he told one press conference, “I think we can do just as good of a job housing [detainees] somewhere else”—the reaction on Capitol Hill was immediate and fierce. This was, recall, when Democrats controlled 60 Senate seats and had a 256-178 majority in the House of Representatives. Even liberal members, such as Chuck Schumer of New York, knew their constituents would rise up in fury if the men his fellow liberals were characterizing as innocent shepherds, victimized by the Bush war on terror, were being inserted into the prison population in the United States.

The vehicle for halting Obama’s plans was the 2011 Defense Department authorization bill. It included a ban on using any money to move the remaining 174 Gitmo prisoners to the United States for any reason. For good measure it also forbade using Pentagon money to build any facility for housing detainees away from Guantánamo, a riposte to an administration plan aimed at setting up such a facility in Illinois. Among the Illinois plan’s biggest critics was the state’s Democratic Senator Dick Durbin. Indeed, only six Senate Democrats voted to fund closing Gitmo. Since then strong majorities of Democrats have joined with Republicans to maintain that ban year after year.

Attorney General Eric Holder called the ban on spending money to move the Gitmo detainees “an extreme and risky encroachment on the authority of the executive branch to determine when and where to prosecute terrorist suspects,” since the ban also made it impossible for the administration to follow through on the other part of its plan to close Gitmo: prosecuting those detainees in civilian courts. Proponents of the ban insisted that the best way to prosecute them was through military tribunals. The arguments that the civilian court system wasn’t ready for trying terrorists got a big boost in November 2010 when a New York federal grand jury acquitted one former Gitmo detainee of all but one count in the 1998 bombings of U.S. embassies in Africa.

Since then, Congress’s position has not changed. Yet, strikingly, Obama has not used the executive authority he insists he possesses to defy Congress and shutter Gitmo anyway; nor has he threatened to veto any National Defense Authorization Act on the grounds that it denies him the ability to carry through on his very first presidential order and remove this supposed blot on America’s reputation. Instead, he ritually issues aggrieved commentary on the passage of the act (without allocating money for closing Gitmo), as he did this past December:

Halfway around the world, the detention facility at Guantánamo Bay, Cuba, remains open for the 13th consecutive year, costing the American people hundreds of millions of dollars each year and undermining America’s standing in the world....Instead of removing unwarranted and burdensome restrictions that curtail the executive branch’s options for managing the detainee population, this bill continues them.

All the same, Obama’s disapproval has been largely symbolic, in part because even he knows his fellow Democrats stand firmly against him. On the 2015 authorization, for example, only four Democrats and one independent, Bernie Sanders, voted against the ban; progressive darlings Elizabeth Warren and Al Franken voted for it.

All this meant that Obama was still stuck with the problem of what to do with the Guantánamo detainees, given Congress’s refusal to let Obama place them in the United States. Obama decided that if Congress would not let him close Gitmo and move prisoners to the United States, he could at least empty the place out by sending them somewhere else.

The first countries he approached to take in the detainees, European allies such as France and Britain and neutrals such as Sweden, said no. If the American Congress wasn’t willing to assume the risk of transferring terrorists to their home soil, why should they? Yemen, which had the largest contingent of detainees still in Gitmo, also said no. In March 2009, its president told counterterrorism adviser John Brennan that he would not even agree to sending Yemeni detainees to a new rehabilitation program being set up in neighboring Saudi Arabia.

The Yemeni president’s reluctance was well placed. The Bush administration had already transferred more than 500 detainees out of Gitmo, most to their home countries. The unclassified April 2009 report on what happened to them makes chilling reading—as much for what it doesn’t say as for what it does.

The report concluded that of the more than 530 Gitmo detainees who had been released since the camp’s opening, 27 had been confirmed, and another 47 suspected, of re-engaging in terrorist activity. “Confirmed” in this case meant there were fingerprints, DNA, photographs, or verified intelligence reports proving that they were back in the fight; “suspected” meant “significant reporting” had matched a known terrorist’s identity to a released Gitmo detainee (which is not always easy since so many Muslim names are similar, and many al-Qaeda operatives use pseudonyms). Abdul Rauf appears on neither list.

These were men released from Gitmo before Obama took office. To get a clear picture of the 240 who were still there when Obama arrived, we can turn to the January 2010 final report of the Gitmo Task Force that Obama appointed in his third executive order in 2009. It presents a very different picture of the Gitmo population from the one liberal groups were painting then—and to this day.

The task force found that “leaders, operators, and facilitators involved in terrorist plots against U.S. targets” made up around 10 percent of the population. They included top actors such as Khalid Shaikh Mohammed, the mastermind of 9/11; Ramzi bin al-Shibh, the principal coordinator of 9/11; Abu Faraj al-Libi, KSM’s successor as principal terrorist planner for al-Qaeda; and Ahmed Khalfan Ghailani, a key participant in the 1998 bombings of embassies in Kenya and Tanzania.

“Others with significant organizational roles in al-Qaeda” or other terrorist groups made up another 20 percent, while “Taliban leaders and members of anti-Coalition militia groups” involved in the war in Afghanistan made up another 10 percent.

The majority of detainees—55 percent—were “foreign fighters with varying degrees of connection to al-Qaeda, Taliban, or associated groups” who had been captured in the initial stages of the Afghan campaign, while still in training camps run by al-Qaeda. They “do not appear to have been among those selected for more advanced training geared toward terrorist operations,” the report said, because their training was just getting started.

Gitmo critics seized on the first statistic from the 2010 report—that only 1 in 10 were directly tied to terrorist strikes against the United States—to argue the rest were relative innocents. This claim was contradicted by the fact that after George W. Bush had dismissed hundreds of Gitmo detainees, fully 95 percent of those who remained were either actively involved or training to become hardened terrorists or jihadist warriors. At the same time, dozens of those released were either confirmed or suspected of getting back into the jihadist fight, and the number was growing rapidly. In addition, 80 of the remaining 240 detainees faced charges serious enough to warrant prosecution or active investigation, as Obama’s investigators determined. Another 48 were deemed “too dangerous to transfer” even though there was not enough evidence to prosecute them.

Obama in effect disregarded the 2010 report he himself had commissioned. With the president now fully committed to shuttering Gitmo, those who were still there had to go, no matter what. The flood of detainees from Gitmo had already gotten under way in 2009 with 47 former terrorists being transferred to multiple countries and another 24 being transferred in 2010. Alarmed at the speed and size of the releases, Congress imposed a new condition on transfers in its 2011 Defense Department appropriations bill. It required Obama to certify that these countries meet a set of security conditions before the United States could send detainees to them. Obama objected to that restriction but refused to say he would ignore it.

The administration did know, however, that even if they found countries willing to take detainees, most if not all the deals would have to be reached in secret, lest locals find out and object to having terrorist suspects on their soil. How difficult this could be Obama soon discovered, in the case of the 17 Uighurs.

The Uighurs, a Chinese ethnic minority that is predominantly Muslim, had been among the hundreds captured in al-Qaeda training camps during the U.S. invasion. Twenty-two were still incarcerated at Gitmo in 2005, when they were ruled “no longer enemy combatants.” That ruling made them innocent men in the eyes of activist groups such as the Center for Constitutional Rights; for the next seven years, the media would rarely mention the Uighur detainees without describing them as having “no involvement in terrorism” or as “wrongly detained at Gitmo”—even as having been captured by mistake.

Colonel Paul Rester, who interviewed them and spent time with them as the intelligence chief at Gitmo, knows better. He describes them as typical “Islamic supplicants” who had joined thousands of others in al-Qaeda’s Afghanistan camps in order to learn how to wage jihad against infidels; their capture had cut their training short, but not their commitment to radical Islam. Still, pressure was growing to get these supposedly innocent victims of the war on terror out of Gitmo, and in 2006 five were transferred to Albania in a deal struck by U.S. authorities.

That left 17 still at Gitmo, and finding new homes for them proved difficult. The one place they weren’t going was the one place that did want them, namely, China. Their lawyers convinced the administration that the Uighurs would only face torture and death if handed over to Chinese authorities. But any country or territory that took in the Uighurs would face the full ire of Beijing. This created a complicated process for negotiating their release over the next four years.

The first deal was struck in secret in June 2009, when the administration convinced the premier of Bermuda, a U.K. overseas territory, to agree to take Uighurs for resettlement and eventual citizenship in the Caribbean island. The four were flown out under cover of darkness out of fear Britain would discover and nix the deal. London, of course, did find out when details of the deal leaked in the American media; photos of the four Uighur “prisoners” swimming joyously in the Atlantic Ocean graced the front page of the New York Times. The British government was furious as were Bermudans, many of whom joined in protests, and the Bermudan opposition party moved for a vote of no confidence in the premier. In the end, London agreed to the deal only on condition that the four not remain in Bermuda. (As of today, the four are still on the island.)

After the Bermuda debacle, the process of removing the remaining Uighurs inched painfully forward. On June 15, 2009, Italy agreed to take three; on July 29, Ireland said it would take two. Other countries began to step forward: Switzerland (in 2011), El Salvador (in 2012), the Palaus, and finally Slovakia took the last remaining three in December 2013.

Human-rights groups considered the process absurd, and dismissed the objection that other countries were being asked to shoulder security risks the United States itself refused to carry. The Carnegie Endowment’s Christopher Boucek, a student of Islamic-extremist rehabilitation programs in the Arab Middle East, retorted in 2011: “We let rapists and pedophiles out of custody every day, and there’s an acceptance that there is a risk they will re-offend.”

Perhaps, but rapists and pedophiles rarely have an international terror network to which they can reconnect when they have the opportunity, or a broad network of friends and relatives they can mobilize for the same cause. That was a risk El Salvador soon discovered in September 2013, when its press announced that the two Uighurs in its custody, Abdul Razakh and Hammed Memet, had slipped out of the country and apparently hightailed it to Turkey. (Neither man has turned up on the list of former Gitmo detainees who have joined ISIS.)

Meanwhile, dozens of other Gitmo detainees were still finding new homes in countries such as Algeria, Kazakstan, Kuwait, and Sudan—28 in 2013 alone. Just four days before the death of Abdul Rauf, Senator Kelly Ayotte of New Hampshire released a statement: “With nearly 30 percent of former Gitmo detainees suspected or confirmed as re-engaging in terrorism, the administration’s continued policy of releasing dangerous terrorists endangers Americans and allies.”

That number infuriates Obama defenders, who point out that of the 116 confirmed recidivists, 48 are either dead or back in custody. That “correction” only gives us the number of active recidivists today—which is not very helpful for considering the overall risks of setting Gitmo terrorists loose.

Defenders point out that the proven recidivism rate is higher for Bush’s releases than for Obama’s—20.7 percent versus 5.2 percent of confirmed cases since 2009—but doing so ignores the fact that Obama’s releases are more recent. Only time will tell how many of the prisoners Obama released will eventually return to the business of terror and jihad. Indeed, efforts by the administration and its friends to make the recidivism issue go away only end up highlighting the real problem: Since according to his own task force report, those who were still at Gitmo in 2009 were the most hard-core, why release them at all?

That’s the issue the American public finally met head-on in the late spring of 2014, with the Bowe Bergdahl case.

On June 1, 2014, five Gitmo detainees were flown to Qatar to be exchanged for an American soldier held by the Taliban, Sargeant Bowe Bergdahl. The public outcry over the deal was enormous, in part because there were serious questions over whether Bergdahl had deserted his post at the time of his capture—and whether he had actively cooperated with his Taliban jailers during his captivity. But the bigger issue was the character of the five members of the Taliban the administration released from Gitmo. Among them was the former chief of staff of the Taliban army, described by the 2010 Joint Task Force Guantánamo as “wanted by the UN for possible war crimes including the murder of thousands of Shiites.” Another was co-founder and former interior minister for the Taliban, as well as a suspected major opium trafficker. The third was a former senior Taliban commander; the fourth, the former deputy chief of the Taliban’s intelligence service; and the fifth, the Taliban’s chief of communications.

These were not peaceful shepherds whisked off by mistake to Gitmo by Bush’s war on terror but hard-core terrorists and senior terrorist commanders. And everyone involved in the deal knew it. As Time magazine later reported, senior American military officials fought hard to keep them from being released but were overruled by the State Department and the White House. The White House tried to reassure the public and Capitol Hill that “the Taliban Five” were not being released but would remain under protective custody in Qatar. That story soon fell apart when the media learned in late January 2015 that one of the five had already attempted to reconnect with his Taliban compatriots in Afghanistan.

The administration immediately tried to dismiss the significance of the story and split some conceptual hairs. “There are different ways of considering re-engagement,” said Pentagon spokesman John Kirby. “It doesn’t necessarily mean return to the battlefield.” Another defense official said, “There are no indications that they are a risk right now,” while Kirby reiterated the administration’s confidence in Qatar’s ability to keep the Taliban Five under wraps. “We have a good security partnership with the government of Qatar,” added Admiral Kirby. “We can mitigate any threat that could be posed by any one of the individuals in terms of terrorist activity.”

Six months after the Bergdahl exchange had ballooned into a full-blown scandal, Obama followed it with the release from Gitmo of a member of the jihadist Tunisian Combatant Group along with four al-Qaeda fighters, including three Yemenis. One of the Yemenis, Husayn Salim Muhammad Al-Matari Yafai, had fallen into U.S. hands in 2002. According to an April 2008 assessment, Yafai was judged to be at high risk for returning to his terrorist activities, and it was recommended he never be released. Obama chose to ignore that assessment, just as he has ignored others, and sent Yafai and the Tunisian to Slovakia for supervised detention. The other three were shipped off to the Republic of Georgia.

As with other detainees sent to foreign countries, these transfers are hardly the end of the story. Even if they don’t actually escape like Abdul Rauf from Kabul or the Uighurs from El Salvador, what will happen if authorities in the host countries decide that a former Gitmo prisoner is no longer a risk, or even decide to exchange a detainee for other prisoners or hostages?

There is another problematic aspect of Obama’s handling of Gitmo. The prison is far more than a terrorist detention camp. After its opening, Gitmo slowly grew into one of the “most advanced intelligence platforms in the world,” according to Colonel Rester. He and his colleagues quietly established a pattern of routine interrogation of detainees and discreet eavesdropping far different from the spectacular “enhanced interrogation techniques” that grabbed the headlines and convulsed the American left.

Conducting tens of thousands of separate interviews, the interrogators at Gitmo were able to piece together what its commandant, General Jay Hood, called “a rich mosaic” of intelligence that its administrators were able to convey directly to American forces in Afghanistan and then Iraq. Despite attempts by radical lawyers such as Michael Ratner and Clive Stafford Smith to disrupt the intelligence-gathering from existing inmates, and despite the granting of writs of habeas corpus that inserted lawyers into virtually every interrogation session, Guantánamo was still poised at the start of the Obama administration to gather valuable information from any new inmates it took in.

That didn’t happen. The anti-Gitmo creed made putting new captured terrorists in the facility impossible, especially for a liberal president. Yet Obama was discovering that, despite his loudly proclaimed reversal of Bush-era policies, the war on terror was not going away—and neither were the terrorists and jihadists. Since capturing and interrogating top terrorists was now all but closed as an option, the Obama administration decided to blow them up instead. The use of missile-firing unmanned aerial vehicles to fight the war on terror, which began with the very first Predator strike in 2004, skyrocketed. During the two terms of George W. Bush, there were a total of 51 drone strikes; in the first Obama term, there were 330. Although the number of strikes has decreased since 2013, estimates say they’ve killed between 2,300 and 2,500 terrorists, including some 84 members of al-Qaeda and three of the organization’s four heads in Pakistan. The policy was one of the reasons Obama was able to boast during his reelection campaign that al-Qaeda was “on the run.”

Yet with the remote strikes came another problem, that of civilian “collateral damage.” The numbers of civilians inadvertently killed in the Predator strikes set off a major outcry, although the actual numbers killed remain unclear. The Bureau of Investigative Journalists has estimated that as of January 2014, between 416 to 951 civilians had been killed, including as many as 200 children. American officials point out that al-Qaeda leaders and other terrorists are only too aware of drones, hovering over their heads like GPS-guided swords of Damocles, and so they take care to surround themselves with civilians in order to make the hit harder to authorize—which makes avoiding the deaths of innocents all but impossible. Still, the drone-strike strategy, especially in Pakistan during the height of the campaign in 2010–11, has been a recruiting tool for terrorists—probably far more so than Gitmo ever was. Even more significant, one must cold-bloodedly accept the fact that every terrorist killed rather than captured represents a lost opportunity when it comes to garnering intelligence.

The abandonment of the human-intelligence route for fighting the war on terror means having to rely more heavily than ever on other more impersonal electronic methods of gathering information on terror networks, such as the National Security Agency’s cell-phone surveillance. Those, too, have become a matter of worldwide controversy, especially following Edward Snowden’s sensational revelations in 2013.

The left’s outrage over the Snowden materials is yet another example of the fact that there is no method used to fight the war on terror it will not oppose—drone strikes, NSA surveillance, or certain interrogation techniques (such as isolation and sleep deprivation) that it considers “tantamount to torture.” And yet these are the people whom Obama seeks to palliate with his arch talk about how running a prison that has housed the world’s most dangerous men is not “who we are.” Such ideologues cannot be appeased—and if Obama finally succeeds in closing Gitmo, they will look on that development simply as one step forward in their relentless war against the war on terror.

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