Wednesday, February 24, 2016

Why Closing Gitmo Is Still a Terrible Idea

By Andrew C. McCarthy — February 23, 2016

The prison at Guantánamo Bay, Cuba. CreditBrennan Linsley/Associated Press

Less than a week ago, French lawmakers voted to extend the state of emergency initiated in November after the Paris jihadist attacks that left 130 dead and 367 wounded. By law, the emergency status vests police with expanded powers to conduct raids, seize property, and detain persons without judicial oversight, much less trial.

It was impossible not to think of France this morning as President Obama once again agitated for the closing of the detention camp at Guantanamo Bay. It is an unkept promise to the hard Left from his 2008 campaign that the president has been working on since his first full day in office seven years ago.

The case has not gotten better with time, unless we factor in the extortionate tactics of the community organizer. Obama has released so many jihadists to other countries that the Gitmo prisoner population is down to 91 (according to the New York Times). Obama, in his brass knuckles way, is telling Congress, “Either shutter this place or I’ll spring even more committed terrorists to return to the jihad.” The threat is his most persuasive argument.

The rest of his case is as preposterous as it ever was. Or worse, actually. The president claims that our allies in the fight against “violent extremism” are dismayed by Gitmo’s continuing operation. Really? Does anyone really believe that the French are worried about Guantanamo Bay when they have suspended their own civil-liberties protections to deal with the prospect of more mass-murder attacks? How about other European countries grappling with the fallout of “migrants” overrunning their territories? Think Gitmo is at the top of their list?

The most laughable claim Obama makes is that Gitmo drives terrorist recruitment. This has always been a specious assertion, made all the more remarkable now by Obama’s campaign to bring thousands of unvettable Syrian “migrants” into our country — on top of the hundreds of thousands of foreigners from Islamic countries who have come to the United States during Obama’s presidency. For the guy who is bringing the recruits here in droves to fret about recruitment is even more precious than is the urging of Gitmo’s closing as a cost-saving measure by the guy who has added $10 trillion to the national debt in just over seven years.
In any event, I’ve responded to the recruitment point several times, most recently after the San Bernardino attack in December:
[T]here are two things that drive terrorist recruitment. The first is Islamic supremacism. In a West ever more indifferent to religion and entranced by the smug assumption that our “values” are universal, the power of a conquest ideology cloaked in religion eludes us. But it seizes our enemies and burns like a fire inside them. While Obama sees America as something to apologize for, Islamists portray their jihad as the road to esteem in this life and bounty in the next. It is a heinous belief system, but belief in something always beats belief in nothing. 
The second driver of terrorist recruitment is the perception that the jihadists are winning, the conviction that they will ultimately prevail. Osama bin Laden wooed young Muslims with the wisdom that people are always drawn to the strong horse and shun the weak one. While Islamic State “caliph” Abu Bakr al-Baghdadi follows up each jihadist atrocity by seizing more territory and enslaving more subjects, the president of the United States follows each jihadist atrocity — Benghazi, Paris, and now San Bernardino — by releasing more jihadists from Gitmo.
It’s not Gitmo driving recruitment. It’s our president. 
In truth, Muslims don’t care a whit about Guantanamo Bay. I prosecuted one of the world’s most notorious terrorists in the mid ’90s, the “Blind Sheikh,” Omar Abdel Rahman, who formed the cell that carried out the 1993 World Trade Center bombing in New York. He got the gold-plated due process of a civilian trial and all the trimmings of top-shelf civilian prison — no Gitmo for him. And you know what? Islamic supremacists continue to condemn his incarceration and jihadists have killed scores of people to try to extort his release. They don’t care where we detain jihadists; they care that we detain jihadists. 
Does Obama think we should release all the terrorists in federal penitentiaries, too? You know, to depress recruitment . . .   
Because it is Islamic supremacism and the perception of victory that draws young Muslims to the jihad, the brute fact is: It’s not detaining terrorists at Gitmo that spurs recruitment; it’s releasing them. Muslims who wage war against America and are held in our prisons become icons of the jihad. They rise from obscurity to legend, and their status imbues them with authority to command attacks, raise funds, and attract recruits. 
The 1993 World Trade Center bombing was planned at Attica Prison in upstate New York, urged on by inmate Sayyid Nosair, who’d become a jihadi hero by murdering Meir Kahane. From stateside civilian custody, Nosair was able to make recruitment tapes, meet young Muslims, and plot new attacks with his jihadist visitors. 
That can’t happen at remote Guantanamo Bay, an offshore military installation. I’d tell you not to take my word for it and go ask Ibrahim Qosi. But he’s not at Gitmo anymore. Thanks to President Obama, he’s back in the jihad, [running al Qaeda’s franchise in Yemen and] recruiting new terrorists.
It is simply a fact that released terrorists and terrorists imprisoned in stateside civilian penitentiaries have a proven history of recruiting for, fundraising for, planning, and inspiring jihadist attacks. Besides the aforementioned planning of the 1993 WTC bombing from Attica, I’ve further recounted:
The 1993 WTC bombers, despite being in maximum security conditions, managed to communicate by letter with al-Qaeda cells in Spain. Attorney Lynne Stewart, among others, was convicted for helping the Blind Sheikh run his Egyptian terrorist organization, al-Gama’a al-Islamiyya or “the Islamic Group,” from his high-security U.S. prison confinement. Osama bin Laden, moreover, credit[ed] the Blind Sheikh with issuing the fatwa that approved the 9/11 attacks from the same confinement. . . . Referring to the United States, Abdel Rahman implored, “Muslims everywhere, dismember their nation, tear them apart, ruin their economy, provoke their corporations, destroy their embassies, attack their interests, sink their ships, and shoot down their planes, kill them on land, at sea, and in the air. Kill them wherever you find them!” 
Relatedly, quite apart from the Lynne Stewart case, terrorists have been known to use their lawyers, paralegals, and investigators to communicate messages to each other and to the outside world. You don’t need to believe that the lawyers et al. are willingly complicit in this (they could be being duped) in order to grasp that it is a major problem. Obviously, it is a far bigger problem if it is going on inside the U.S. than at Gitmo.
Besides refuting the recruitment canard and accounting for the capacity of imprisoned and released jihadists to inspire terrorism, it is worth rehearsing several other reasons why closing Gitmo remains a terrible idea, which I’ve outlined before:

The Violence to Facilitate Escape or Release Concern. While it would be virtually impossible for an inmate in a stateside supermax facility to escape, that makes little difference to members of terrorist organizations who are at large and who constantly plot either direct escape attempts or other acts of terrorism aimed at extorting the release of their imprisoned cohorts. To quote again from the Lynne Stewart terrorism-case indictment in New York, the Blind Sheik recorded a message from his American civilian prison to his followers worldwide, stating that it was “the duty of all Muslims to set free any imprisoned fellow Muslims,” and that “[t]he Sheikh is calling on you, morning and evening. Oh Muslims! Oh Muslims! And he finds no respondents. It is a duty upon all the Muslims around the world to come to free the Sheikh, and to rescue him from his jail.”

So, for example, when the WTC was bombed in 1993, the other top project on the cell’s agenda was breaking Nosair out of Attica. When the WTC bombers were arrested, their co-conspirators plotted several atrocities (a conspiracy to murder Egyptian President Hosni Mubarak on a trip to New York and a plot to bomb New York City landmarks) which, in part, were designed (as they discussed in recorded conversations) to induce American authorities to release the prisoners. 

Further, to quote again from the Stewart indictment, in 1996, a statement, issued in the name of the Islamic Group, responded to the Blind Sheikh’s sentence of life imprisonment by threatening, “All American interests will be legitimate targets for our struggle until the release of Sheikh Omar Abdel Rahman and his brothers. As the American Government has opted for open confrontation with the Islamic movement and the Islamic symbols of struggle, al-Gama’a al-Islamiyya swears by God to its irreversible vow to take an eye for an eye.” In 1997, the organization reiterated: “The Islamic Group declares all American interests legitimate targets to its legitimate jihad until the release of all prisoners, on top of whom [is the Blind Sheikh].” 
Later in 1997, over 50 tourists were slaughtered in Luxor, Egypt, by members of the Islamic Group. As the afore-quoted indictment recounts: “The torso of one victim was slit by the terrorists and a leaflet calling for Abdel Rahman’s release was inserted.”

The Stewart indictment adds:
In or about March 2000, individuals claiming association with the Abu Sayyaf terrorist group kidnapped approximately 29 hostages in the Philippines, demanded the release from prison of Abdel Rahman and two other convicted terrorists in exchange for the release of those hostages, and threatened to behead hostages if their demands were not met. Philippine authorities later found two decomposed, beheaded bodies in an area where the hostages had been held, and four hostages were “unaccounted for.” 
On or about September 21, 2000, an Arabic television station, Al Jazeera, televised a meeting of Usama Bin Laden (leader of the al-Qaeda terrorist organization), Ayman al Zawahiri (former leader of the Egyptian Islamic Jihad organization and one of Bin Laden’s top lieutenants), and [Rifa'i Ahmad Taha Musa, the then-leader of the Islamic Group]. Sitting under a banner which read, “Convention to Support Honorable Omar Abdel Rahman,” the three terrorist leaders pledged to free Abdel Rahman from incarceration in the United States. During the meeting, Mohammed Abdel Rahman, . . . a son of Abdel Rahman, was heard encouraging others to “avenge your Sheikh” and “go to the spilling of blood.”
Obviously, some of this would happen whether prisoners were incarcerated in the U.S. or not, but concerns about escape plots will cause major security issues in states, cities, and towns where the prisoners are held.

The Violence Against Prison Guards Concern. Among the highest-ranking members of al-Qaeda ever brought to the U.S. for civilian trial is Mamdouh Mahmud Salim, one of the network’s founders who was indicted in the 1998 embassy bombings case. He never stood trial for those atrocities, however. That’s because he attempted to murder Bureau of Prisons guard Louis Pepe (by sticking a shiv through his eye and several inches into his brain). Interestingly, Salim chose a meeting with his U.S. taxpayer-funded defense lawyers — ostensibly for “trial preparation” — as the perfect time to execute his escape plot. He was planning to kidnap the lawyers to facilitate the escape of himself and other terrorists. 

Meanwhile, in 2006, Mark Levin’s Landmark Legal Foundation induced the Pentagon, under the Freedom of Information Act, to disclose reports documenting hundreds of assaults on prison guards at Guantanamo Bay. In addition, the information released in connection with combatant status review tribunals refers to plenty of inmate violence. Again, these would be concerns wherever the prisoners were incarcerated, but it is far better to have these problems in a military facility outside the U.S.

The Increased Risk that Terrorists Will Be Released by Courts. Finally, it is worth observing that Islamists and leftists protesting Gitmo are not so much against the prison camp in Cuba as they are against detention without trial under the laws of war. That situation would continue even if the prisoners were brought into our country. Remember, we are talking about trained jihadists who are known, based on solid intelligence (including years of interviews), to be a danger to the United States, but who cannot be tried because evidence against them is either inadmissible because it was obtained in wartime outside due-process rules, or cannot be used because it would jeopardize intelligence methods, sources, and information-sharing agreements with foreign allies.

The difference, however, is that once the prisoners were moved into the United States, they would unquestionably be within the jurisdiction of federal courts, including nearly 400 judges whom President Obama will have appointed by the time he leaves office. Many of these judges are innately hostile to indefinite detention without trial under military protocols rather than civilian due process. Thus, the chance that terrorists would be ordered to be released from custody would be markedly increased. While the jihadists are at Gitmo, all the courts can really do is rule that there is an inadequate basis to hold them as enemy combatants; when that happens, the executive branch holds them at Gitmo until it finds a country willing to take them — however long that takes. But once the terrorists are here, if the courts rule detention is illegal and the executive branch cannot find countries willing to accept the detainees, it is easy to foresee judges ordering their release within our borders.

Closing Guantanamo Bay is not a priority, much less a necessity. There will be abundant reason to keep it operational indefinitely. If it is to be shuttered, that should be done by a responsible commander-in-chief who acknowledges that the civilian-justice system is not designed to deal with enemy combatants and who is willing to cooperate with Congress in fashioning a legal framework for wartime detention, interrogation, and trial.

— Andrew C. McCarthy is as senior policy fellow at the National Review Institute and a contributing editor of National Review.

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