Obama’s last gasp on Gitmo: James S. Robbins

On Tuesday, President Obama made a last-ditch appeal to Congress to pass legislation that would allow him to make good on his promise two days into his presidency to close the terrorist detainee facility at Guantanamo Bay, Cuba. Even if it were a good idea, it wouldn’t likely happen. For one thing, as the Obama administration was making its case, the Spanish government announced the latest example of a former Gitmo detainee getting back into the terrorism business.

The law that Obama wants to change is the 2011 Defense Authorization Act, which bars the president from bringing detainees to the United States or releasing them to foreign countries without passing a rigorous security review. In a signing statement, Obama objected to these restrictions as encroaching on his executive prerogatives.

Closing Guantanamo was one of his signature issues in the 2008 presidential campaign, but the problem was only as urgent as he made it. A total of 783 detainees have been held there since 2002, and only 91 remain. Of the 692 who were released, transferred or died in custody,  151 were resettled under Obama.

Obama criticized the facility as symbolic of the excesses of the period following the 9/11 attacks and claims it has been used as a recruiting tool for terrorists. In fact, Camp Delta was likely the most humane facility of its type in the history of warfare, but it was politically expedient for Democrats to side with those who characterized it as an “American gulag.” There is no reason to believe that critics won’t level the same unjust hyperbole at the proposed detention facility the White House wants to construct inside the USA.

Whether any terrorists were actually recruited because of anti-Gitmo propaganda is speculative. However, we know for a fact that releasing detainees will send some of them back into the terrorists’ ranks. A March report from the Director of National Intelligence put the recidivism rate of Guantanamo detainees — both those confirmed and suspected of re-engaging — at close to 29%.

Even if Obama’s plan were implemented, it would face the same legal challenges that have existed since before the facility was opened. Detainees were taken to Guantanamo because of the Navy base’s unique legal status established by the Supreme Court in the 1990s, when President Clinton held Cuban and Haitian refugees in legal limbo. The Supreme Court determined that people held there did not have the constitutional due process rights guaranteed to U.S. citizens and other residents.

Bringing a projected 30 to 60 detainees to the USA now would mean having to mount expensive, complex trials in which the government will be forced to choose what sensitive classified information it must reveal to secure convictions, or let the terrorists go. The Obama administration’s plan stated that one possibility would be simply to detain the prisoners indefinitely without trial. That is a long descent from the moral high ground Obama had staked out in 2008.

The 2010 federal trial of al-Qaeda terrorist Ahmed Khalfan Ghailani is instructive in the problems of mounting trials in the U.S. He was convicted of only one of 285 charges related to the 1998 bombings of U.S. Embassies in Africa because of problems arising with how evidence against him was collected. The rarefied atmosphere of an American courtroom might not be amenable to cases based on 15-year-old events and evidence collected to protect national security rather than meet peacetime courtroom standards. The costs of these trials would eat into the projected savings of $335 million over 10 years from closing the prison, leaving, at best, a rounding error in the defense budget.

Worse, Obama’s plan would leave the next president, Democratic or Republican, a renewed international controversy and a drumbeat of negative headlines as judges and defense lawyers examine 15 years of the war on terror under a microscope in trial after trial.

President Obama’s last gasp at closing Gitmo simply rehashes the same old problems and offers no new solutions. If getting rid of the facility made any sense, he would have accomplished it in his first year in office, not as he is going out the door.

James S. Robbins is a member of USA TODAY’s Board of Contributors and the author of The Real Custer: From Boy General to Tragic Hero. In addition to its own editorials, USA TODAY publishes diverse opinions from outside writers, including our Board of Contributors.