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The Collapse of the Guantanamo Myth
This week a Democratic Congress ratified Bush-era policy by refusing to fund any effort to shut the detention
By JOHN C. YOO
AND ROBERT J. DELAHUNTY
When announcing in 2002 that the U.S. would detain al Qaeda fighters at Guantanamo Bay, Cuba, then-Defense Secretary Donald
Rumsfeld famously described the base as "the best, least worst place." Mr.
Rumsfeld's quip distilled a truth: The U.S. would capture enemy fighters and
leaders, and their detention, while messy, was of great military value.
For two years, President Barack Obama has pretended that terrorism is a crime, that prisoners are unwanted, and that Gitmo is unneeded. As a
presidential candidate, he declared: "It's time to show the world . . . we're
not a country that runs prisons which lock people away without ever telling them
why they're there or what they're charged with." Upon taking office, he ordered
Gitmo closed within the year.
But the president's embrace of the left's terrorism-as-crime theories collided with his responsibility to protect a great
nation. Now the reality of the ongoing war on terror is helping to shatter the
Gitmo myth and end its distortion of our antiterrorism strategies.
This week the intelligence community reported to Congress that one-quarter of the
detainees released from Guantanamo in the past eight years have returned to the
fight. Though the U.S. and its allies have killed or recaptured some of these
150 terrorists, well over half remain at large. The Defense Department reports
that Gitmo alumni have assumed top positions in al Qaeda and the Taliban,
attacked allies in Iraq and Afghanistan, and led efforts to kill U.S. troops.
too low. The intelligence community reports that it usually takes about two and
a half years before a released detainee shows up on its radar. Our forces
probably have yet to re-engage most of the terrorists among the 66 detainees
released so far by the Obama administration.
The Bush administration released many more, but those freed by this administration are likely more
dangerous. Contrary to the Gitmo myth, innocent teenagers and wandering goat
herders do not fill the base. Last May, an administration task force found that
of the 240 detainees at Gitmo when Mr. Obama took office, almost all were
leaders, fighters or organizers for al Qaeda, the Taliban or other jihadist
groups. None was judged innocent.
All of this is having an impact on Congress, which this week voted overwhelmingly to de-fund any effort to shut
down the Gitmo prison. It also barred the Justice Department from transferring
detainees to the U.S. homeland. Despite Attorney General Eric Holder's rush to
put Khalid Sheikh Mohammed on trial in downtown New York, the planners of the
9/11 attacks will stay put.
Congress is reflecting the wishes of the American people. In the Gitmo myth, President George W. Bush was a Lone Ranger
acting without Congressional permission, and Gitmo was a law-free zone. But the
American people never opposed capturing and detaining the enemy. And now
Democratic Congress has ratified Mr. Bush's policy.
Freezing the Gitmo status quo will stop the release of al Qaeda killers, but it won't end the
serious distortions in Mr. Obama's terrorism policy.
The administration relies on unmanned drones to kill al Qaeda leaders hiding in Pakistan and
Afghanistan. CIA Director Leon Panetta calls it "the only game in town." Drones
take no prisoners, but they also ask no questions. Firing missiles from afar
cannot substitute for the capture and interrogation of al Qaeda leaders for
intelligence. (The real question now is whether CIA agents will decline to
interrogate prisoners, thanks to Mr. Holder's criminal investigations into Bush
As long as no one is sent to Gitmo, the Obama administration will leave itself two options for dealing with terrorists: kill, or
catch-and-release. Mr. Obama's drone-heavy policy means that more people will
die—not only al Qaeda and Taliban fighters, but also innocent Afghan and
The Gitmo myth also drove the Justice Department's push to prosecute al Qaeda leaders in U.S. civilian courts. Nowhere else did the
Obama administration place its view of terrorism more clearly on display as a
law-enforcement problem. The near-acquittal of Ahmed Ghailani, the al Qaeda
operative who facilitated the 2000 bombing of the USS Cole, by a New York jury
last month has clearly revealed that path as a dead end—even if Mr. Holder
remains in denial.
The simple alternative is to continue detentions at Gitmo. Detention is consistent with the rules of war, which allow captured
combatants to be held indefinitely without requiring criminal charges to be
filed. It also keeps our troops and agents in the field focused on finding and
killing the enemy, not on collecting evidence and interviewing witnesses.
Using its constitutional power of the purse, the new Congress should continue to keep Gitmo in operation. It should press President Obama to resume
the capture, detention and interrogation of al Qaeda leaders. It should also
educate the public about the real state of affairs in Guantanamo: The military
has spent millions to create a model facility.
Most importantly, Congress can use its oversight power to probe the decision-making that led to
the release of the 150 or more recidivists. It can require a full accounting
from the military and intelligence agencies of the harms caused by released
detainees, and it can bring to light the risks that these bureaucratic mistakes
will pose to American lives.
After the left's long denunciation of Bush-era policies, Mr. Obama should admit that he has made his share of
mistakes—not the least of which has been propagating the Gitmo myth. If
Americans die at the hands of released detainees, we will know who to blame.
Mr. Yoo is a law professor at the University of California, Berkeley, and an American Enterprise Institute scholar. Mr. Delahunty is an
associate professor at the University of St. Thomas School of Law in
Minneapolis. Both served in the Justice Department under President George W.
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