As President Barack Obama has stated, the detention camp at U.S. Naval Station, Guantanamo Bay, Cuba is a professionally operated facility. As he acknowledges, many of those detained there still pose a threat. Our troops and innocent civilians were and are endangered by the 61 previously released who went back to a life of terrorism; a number have been killed or were recaptured.

This morning, Gold Star family members, 9/11 family members, and former members of our military will join Move America Forward at the National Press Club to ask that the decision to close Gitmo be reversed.

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Updated, 1:20 PM Eastern: Video from this morning’s press conference added. Due to technical problems from the source, it begins after Melanie Morgan’s introduction and during questions and answers with Senator James Inhofe. He was followed by brief comments by and a Q & A with Gold Star mother Debbie Lee, 9/11 family members Lorraine Arias-Beliveau, Geraldine Davey, Hamilton Peterson, and Debra Burlingame:

Live Video streaming by Ustream

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Original posted continued:

We ask that you view Move America Forward’s new television advertisement here (or by going to the top right of this site), sign the petition to Keep Gitmo Open, and become better informed about Guantanamo. The terrorists at Gitmo are not common criminals just doing time for their crimes; nearly all remain our sworn enemies, wage a daily war against our heroic troops guarding them, and would return to terrorism if released.

Bringing detainees to within our borders and providing the enemy our Constitutional rights of due process would pose real dangers to our national security and significant legal challenges to the Department of Justice.

We must keep Gitmo open.

Andrew C. McCarthy is the legal-affairs editor at National Review and the author of the national bestseller ‘Willful Blindness: A Memoir of the Jihad’ (Encounter Books 2008).. He explained this morning why keeping Gitmo open and detainees out of our federal courts is imperative:

The moral of the story is reiterated with each new report of released terrorists returning promptly to terror, as they reliably do: If we didn’t already have Gitmo, we’d have to invent it. There really is a war going on out there. President Obama admitted as much in his inaugural address, to the unspoken dismay, no doubt, of his most ardent supporters. We cannot rely very much on other countries to protect our national security.

It has never been possible, nor thought possible, to win a war in court. There are simply too many jihadists, with the vast majority operating outside the jurisdiction of our laws. When we are fortunate enough to nab one, that usually happens under fog-of-war conditions not conducive to Miranda warnings, police evidence-collection protocols, and the like. And it bears keeping in mind that the purpose of an American trial is to force the government to meet a very high burden of proof in a system developed for the benefit of American citizens enjoying the presumption of innocence. That is why we say we would prefer to see the government fail — i.e., prefer to see the guilty go free — than to see an innocent person wrongly convicted.

War is different. A war is fought — meaning that people are killed and prisoners taken — in order to achieve vital national objectives, particularly the protection of American lives. In that context, we cannot prefer to see the government fail. We need the government to prevail, or our lives and the rights we cherish are in jeopardy. That doesn’t mean the enemy doesn’t get due process, particularly if we decide to put some of them on trial for war crimes rather than simply detaining them for the duration of the conflict. There is, however, a reason it is called due process, rather than, say, trial process. We owe only the process that is due in the particular circumstances. War and peace are not the same circumstance. The process due Americans accused of crimes in civilian courts is not the same as the process due foreign combatants and terrorists captured during military operations.

While 245 prisoners remain at Gitmo, we’ve detained tens of thousands in Afghanistan, Iraq, and elsewhere at one time or another in the course of this war. Gitmo has never held more than 800 prisoners. And even the gross number of detainees in this conflict pales in comparison to the number held, for example, in World War II, during which millions of prisoners were taken. We couldn’t conceivably conduct full-blown civilian trials for everyone detained under the necessities of war. Even in the Clinton years, when trial in the civilian courts was the favored counterterrorism strategy, we tried fewer than three dozen terrorists — even as Americans were attacked year after year.

Like it or not, we require a framework for detaining enemy combatants and trying provable war criminals, and that framework is not the civilian judiciary. The military justice system is, by necessity, going to have to be a part of any meaningful solution. Undeniably, the military-commission system has performed dismally so far, but performance should be distinguished from principle. Remember, we turned to military justice because the civilian system had shown itself inadequate for the purpose at hand—and the purpose, remember, is not to provide due process for our enemies. The purpose is to secure our citizens by neutralizing as many of our enemies as possible.

In addtional. Mr. McCarthy provided a written statement to Move America Forward. Within it, in part, he writes:

If the detainees are brought into the U.S., especially under circumstances where Congress continues to abdicate its responsibilities:

* The courts are likely to fashion procedural rules far more favorable to the detainees than Congress would. Because judges are not politically accountable to the American people whose lives are at stake in the war, and because their task is to maximize fairness to the litigants before them not to protect national security, they naturally tend to give undue weight to the rights of suspected terrorists over concerns about success in the war and the safety of Americans.

* Detainees will claim that their lawful presence in the United States entitles them to all the rights afforded to criminal defendants charged in the civilian justice system.

* Judges are very likely to abandon any restraint caused by reading Boumediene narrowly as an unprecedented judicial intrusion into U.S. military operations overseas. Once the detainees are inside our borders, judges will view them as judges view other alien litigants, who are routinely given broad protections in litigation against the government.

* Detainees, and particularly any detainees judicially determined not to be enemy combatants, will claim a due process right to be released in the United States pending hearings, trials, or deportation/extradition.

Mr. McCarthy’s full statement is provided below, after the jump:

If the Guantanamo Detainees Are Transferred Into the U.S.
By Andrew C. McCarthy, February 10, 2009

At the moment, alien enemy combatants are being held by the military outside the territorial jurisdiction of the U.S. courts. Prior to 2004, that meant (a) the federal courts had no authority over the combatants, and (b) the combatants did not have any rights under the U.S. Constitution because they are not American citizens, they do not have any lawful immigration status in the United States, and they were not in the United States, where even illegal aliens are deemed to have some core constitutional rights.

In the 2004 case of Rasul v. Bush, the Supreme Court ruled that federal courts do have jurisdiction over the U.S. naval facility at Guantanamo Bay, Cuba. (Unique facts provide the U.S. with an unusual degree of de jure as well as de facto control over Guantanamo Bay. Consequently, it is not yet clear whether (a) the Court’s ruling is peculiar to the military detention center in Cuba, or (b) the Court’s logic will extend federal court jurisdiction to other places in the world where the U.S. government operates.)

In the 2008 case of Boumediene v. Bush, the Supreme Court ruled that detainees held by the military in Guantanamo Bay as alien enemy combatants are vested with the right to habeas corpus (i.e., the right to contest the legality of their detention in federal court) under the U.S. Constitution. It is not yet clear whether the Court’s rationale means that (a) alien detainees have only the constitutional habeas right, or (b) alien detainees are vested with other constitutional rights as well.

The Boumediene case did not prescribe any procedure by which detainee challenges to detention should be resolved. In our system, it is generally the obligation of Congress to prescribe the rules and procedures that apply in proceedings before the federal courts. Yet, despite pleas for assistance by the Attorney General, Congress has failed to act. Indeed, it has failed even to enact legislation making it clear that those detained as alien enemy combatants — many of whom have received terrorist training in al Qaeda-affiliated camps — may not be released in the United States in the event judges determine there is not enough evidence to hold them as enemy combatants.

Congress’s abdication of its responsibility is this crucial area — despite its years of complaining that the Bush administration was making war policy unilaterally — has left it to the lower federal courts to fill the void: crafting their own rules, procedures, and remedies on an ad hoc basis, as issues arise in detainee litigation.

As noted above, Boumediene, the precedent that is now the basis for all detainee habeas litigation, held that detainee habeas rights are rooted in the Constitution. As a result, it will inevitably be claimed that whatever procedural rights the lower courts afford to the detainees (e.g., rights to discovery of government intelligence files, to assistance of counsel, to hearings that may closely resemble full-blown criminal trials, to release, etc.) are also rooted in the Constitution. This is an alarming prospect. When rights are based on statutes, Congress may alter or rescind them as circumstances warrant. But because the courts are deemed to be the final word on the meaning of the Constitution, it is difficult if not impossible for Congress to amend or reverse a judicial ruling that the courts say is rooted in the Constitution.

As long as the detainees continue to be held outside the United States, there will be a strong argument (albeit not necessarily a winning argument) that Boumediene provided alien detainees only with habeas rights, not with any other constitutional rights. Generally speaking, non-Americans outside the United States are not entitled to American constitutional rights—and certainly not to the full run of legal rights afforded to U.S. citizens who are accused of crimes

The detainees’ habeas rights would be satisfied merely by permitting them access to federal court to challenge their detention. If the courts were to determine a detainee was being improperly held as an enemy combatant, he could then continue to be held until the U.S. found a country willing to accept the detainee (and to which the U.S. could extradite the detainee consistent with our obligations under international law to refrain from transferring people to countries where they are likely to face persecution).

While the detainees are held outside the U.S., it is a favorable situation for Congress to fill the void left by Boumediene by (a) prescribing rules and procedures for detainee habeas challenges in the federal courts, and (b) enacting law that makes it clear that, regardless of where they are held, detainees have no right to seek asylum in, or otherwise be released in, the United States. Again, upon a judicial determination that an alien detainee is not an enemy combatant, that detainee would continue to be detained until the U.S. found a country willing to accept the detainee.

If the detainees are brought into the U.S., especially under circumstances where Congress continues to abdicate its responsibilities:

* The courts are likely to fashion procedural rules far more favorable to the detainees than Congress would. Because judges are not politically accountable to the American people whose lives are at stake in the war, and because their task is to maximize fairness to the litigants before them not to protect national security, they naturally tend to give undue weight to the rights of suspected terrorists over concerns about success in the war and the safety of Americans.

* Detainees will claim that their lawful presence in the United States entitles them to all the rights afforded to criminal defendants charged in the civilian justice system.

* Judges are very likely to abandon any restraint caused by reading Boumediene narrowly as an unprecedented judicial intrusion into U.S. military operations overseas. Once the detainees are inside our borders, judges will view them as judges view other alien litigants, who are routinely given broad protections in litigation against the government.

* Detainees, and particularly any detainees judicially determined not to be enemy combatants, will claim a due process right to be released in the United States pending hearings, trials, or deportation/extradition.

We thank Michelle Malkin for her support in this effort.