Two weeks ago, I was among a small group of USS Cole and 9/11 victims’ families who met with President Obama at the White House. Despite President Obama’s assurances that the safety and security of the American people is his number one priority, I left the meeting with little confidence that the President appreciates the grave consequences of shutting down Guantanamo or the complex problems associated with adjudicating detainee cases in the federal court system. Indeed, he told us that he is “not at all concerned” about the security issues of bringing the detainees to the U.S. His rationale for this is simple: whether detainees are held in a federal prison or a military facility, either location would present a “hard target” for future terrorist attacks aimed at freeing them. He believes the detainees will be forgotten by their fellow militants.
They will not be forgotten, however, by an army of elite defense lawyers who have declared that nothing less than a platinum standard of due process is acceptable for men who killed 3,000 innocent people, even if that means letting them and other dangerous terrorists go free. Indeed, the most real and immediate risk posed by bringing detainees to U.S. soil is that federal judges will do what al-Qaeda cannot: order that committed jihadists be released. Last year, in habeas corpus proceedings, a federal judge ordered the release of 17 Chinese Muslims who were training in Afghanistan with the East Turkestan Islamic Movement to carry out terrorist attacks in mainland China. That case was recently reversed, but will no doubt be appealed. Does it make sense to release these individuals to suburban Virginia?
How will the federal courts handle evidentiary matters involving classified information being demanded by the likes of Khalid Sheikh Mohammed representing himself? Will prosecutors be forced to disclose crucial battlefield intelligence or dismiss their cases?
The Pentagon has identified some 61 former detainees who have returned to the battlefield, among them Abdullah al-Ajmi, a Kuwaiti who carried out a suicide attack in Mosul that killed 12 Iraqi soldiers. Last September, al-Qaeda bombed the American embassy in Yemen, killing six people, including an 18-year-old Muslim-American teenager from upstate New York. That attack is believed to have been planned by a former detainee, now the leader of al-Qaeda in Yemen and a graduate of Saudi Arabia’s terrorist “rehabilitation” program. Though touted by the U.S. State Department as a model program, Saudi Arabia has reached out to Interpol after losing track of some 85 admitted members of al-Qaeda, including 11 former Gitmo detainees.
Nearly 100 of the current detainees are from Yemen, a country whose president, who previously released two of the men responsible in the USS Cole attack, refuses to make guarantees that repatriated detainees will be prevented from engaging in future terrorist activities. Indeed, he recently released 170 admitted militants in furtherance of a truce with al-Qaeda.
President Obama made an important admission in that White House meeting with victims’ families. He said that, “the world saw what happened at Abu Ghraib and mixed that up with Guantanamo.” The detention center has become a symbol, he said, of American injustice, and “fair or not,” it has to be shut down. Going forward, the President has a solemn obligation not to allow the safety and security of the American people to be put at risk to correct a misperception elsewhere in the world, particularly when terrorism is a global problem. Nor should the President allow alien enemy combatants to propagandize our justice system simply to satisfy the same civil rights absolutists who will be first in line, as they were after 9/11, to decry the government’s institutional failures when the next catastrophic attack occurs.
The Supreme Court has affirmed the right of the United States to hold enemy combatants in preventative detention until the end of hostilities. We cannot expect our military to risk their lives fighting the enemy, then to risk them again to secure criminal evidence in the midst of war. Congress should step up and fulfill its responsibility to create a balanced, reasonable and consistent legal framework for trying detainee cases which recognizes that criminal courts, operating in a vacuum, can hurt us far more than world opinion.
It’s been said that the war on terror won’t be won on the battlefield. No, but if the ACLU has its way, it will be lost in the courts.
This commentary originally appeared in the Washington Post on February 21, 2009 as part of a series entitled ‘After Guantanamo’. If you go there, you will find a variety of related opinions, to incude this one by Colonel Lawrence Morris
Debra Burlingame, a former attorney, is co-founder of 9/11 Families for a Safe & Strong America.