Gitmo: Closing Up Shop?

man-in-suitLost in the furor surrounding President Obama’s decision to swap five high-level terrorists for Sgt. Bowe Bergdahl is a potential ulterior motivation for the deal lurking in the background: fulfilling the president’s 2014 State of the Union promise to completely shut down the prison at Guantanamo Bay.

“This whole deal may have been a test to see how far the administration can actually push it, and if Congress doesn’t fight back they will feel more empowered to move forward with additional transfers,” a senior GOP Senate aide told the Daily Beast’s Josh Rogin. “They’ve lined up all the dominoes to be able to move a lot more detainees out of Guantanamo and this could be just the beginning.”

The principal domino is the notion, getting play in the precincts of the left, that once a war ends, the prisoners of that war must be released. In an exchange with Fox News’s Megyn Kelly Sen. James Inhofe (R-OK) addressed the absurdity of that contention. “So they should have turned Hitler loose and that would have been the end of the war,” he said. “This isn’t right, and I just — it’s hard for me and people I talk to, a lot of people in Oklahoma, just this morning about this, they can’t figure out why in the world would we turn loose the five most dangerous people who hate America, who want to kill Americans, who have the equipment and the following to revive the Taliban and that’s what they are doing.”

It’s part of an agenda a long time in the making. In October of last year, the Washington Post reported that Defense Secretary Chuck Hagel appointed Paul M. Lewis, a Democratic lawyer for the House Armed Services Committee and a former judge advocate in the Marine Corps, to a newly-created Pentagon position as special envoy for Guantanamo closure. The appointment fulfilled a promise made by Obama the previous May to create special envoy positions at both the State and Defense Departments to pursue that agenda.

The strategy here was to perpetrate yet another end-run around Congress, which had blocked the administration from releasing or transferring many of the then-remaining 164 detainees, and taking only a small number of them to trial. The administration was exploring the possibility that the withdrawal of U.S. troops from Afghanistan would facilitate challenges regarding the United States’ legal authority to continue holding them. The declaration of the war’s end could force that determination to be made about Afghan Taliban captured on the battlefield and allow them to file new appeals in federal courts. “In the words of the Supreme Court, the authority to detain — if you’re detaining based on someone being a belligerent — can unravel as hot wars end. And I think that’s a real question,” Brig. Gen. Mark Martins, chief prosecutor for military commissions at Guantanamo said at the time.

The word “end” is key. When the president announced his intentions to ultimately withdraw from Afghanistan in 2016, he nonetheless stressed that our combat mission in that nation would end this year, even as 9,800 troops will remain until 2015, and half that number until 2016. An administration official briefing the press prior to that announcement stressed that 2014 would be the end of our “combat mission,” even as he further noted that the U.S. remain open to “training Afghan forces and supporting CT [counter-terrorism] operations against the remnants of Al Qaeda.”

One is left to wonder what the legalistic difference is between “combat” and counter-terrorism “support,” but the overall motive remains clear: declaring the war over, regardless of events on the ground, paves the way for the release of enemy combatants—and in turn, the closure of Gitmo.

One is also left to wonder about the legality of the latest exchange as well. Current law, included as part of the National Defense Authorization Act (NDAA) for 2014, requires the Secretary of Defense to notify Congress 30 days prior to any prisoner transfers, to explain the reason for doing so, and to provide assurances that none of the released detainees would be able to re-engage in activities harmful to the United States or its interests. That law replaced one that was even stricter, and while Obama signed it, he issued a signing statement contending it was an unconstitutional infringement on his powers as commander in chief, allowing him to override it.

Ironically, the move to a less strict statute requiring only that Congress be notified was due in some part to concern over Bergdahl’s well-being. And while both the Bush and Obama administrations have transferred prisoners to other countries, this swap was the first under the new requirements. Requirements that  were ignored by Obama for reasons best explained by a senior GOP senate aide. “The whole reason the administration ignores reporting requirements is because they know there is no consequence for ignoring them,” the aide said.

No legal consequences at any rate. As the Wall Street Journal explains presidential power “is never stronger than in the role of Commander in Chief,” and Congress’s attempt to restrict it may be unconstitutional. Furthermore, Obama already ignored the War Powers Act of 1973 to intercede in Libya and Congress did nothing more than grumble about it. Thus it seems likely that he would be more than willing to push the envelope in whatever way he deems necessary to empty Guantanamo Bay.

Congress is well aware of that reality, and several GOP Senators were working to restrict further releases of Gitmo prisoners before the Bergdahl swap took place. Obama scored an initial victory in his effort to close the prison when the Senate Armed Services Committee approved giving him the authority to transfer detainees to the United State if Congress votes to close the facility. Sen. Carl Levin (D-MI) chairman of the Armed Services Committee hailed the provision. Inhofe, the top Republican on Committee, voted for the overall defense bill, but will work with the GOP-controlled House to kill it. During the session, two GOP senators won support for key amendments. Sen. Lindsey Graham (R-SC) won support for establishing a process in which any administration plan aimed at closing Gitmo would be subject to a joint resolution of disapproval from both houses of Congress, and Sen. Kelly Ayotte (R-NH) won support for a one-year ban on transferring Gitmo prisoners to Yemen.

Ayotte’s amendment theoretically prevents the prison’s closure in 2014, because half the remaining prisoners are Yemeni and they would presumably be sent back home, despite the reality that other released detainees from that nation have resumed their terrorist ways. Yet as Rogin notes, timing is key:

The GOP effort, however, will take longer than seven months to have any effect because the defense policy bill won’t even be considered in the Senate until after the election. Typically, the defense bill is passed in late December. There’s no chance Congress will pass an appropriations bill this year, meaning Congress can’t remove the funding for transfers. That gives Obama plenty of time to use the current looseness of the law to push forward the releases of many more prisoners.

Perhaps not. As the National Review’s Andrew McCarthy explains pressure can be brought to bear, not because the president might be overstepping his authority with regard to the requirements of the NDAA, but because Obama “has returned five senior commanders to the Taliban and Haqqani network while those violent jihadist organizations are still conducting offensive attacks against American troops, who are still in harm’s way and still conducting combat operations pursuant to a congressional authorization of military force.” (italics original)

This point is critical because it not only undermines leftist contentions regarding prisoner exchanges, it reveals the utter fecklessness of the president’s desire to end the war, even as our terrorist enemy remains willing to pursue it. “The Taliban and Haqqani have not surrendered or settled; they are still working hard to kill our troops,” McCarthy writes. “It is thus mind-bogglingly irresponsible for the commander-in-chief to replenish their upper ranks.”

House Armed Services committee chairman Buck McKeon (R-CA) has promised to hold hearings on the prisoner swap. As of now, he is focused on the violation of the 30-day notice in the NDAA. Any investigation would be far better served focusing on what McCarthy terms the Commander-in-Chief’s “profound dereliction of duty.” If Republicans pursue the prisoner exchange within that context, Obama’s efforts to continue transferring enemy combatants out of Guantanamo Bay prison becomes a political millstone of gargantuan proportions, even before the details of Sgt. Bowe Bergdahl’s dubious past are  fully confirmed. Regardless, Obama likely remains determined to push the legal and political envelope in pursuit of that odious agenda. Republicans and perhaps even some thoughtful Democrats should be determined to push back just as hard. American lives may depend on it.

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  • jeepwonder

    Obama can pretend all he wants. They aren’t done trying to kill us.

  • Mike

    Maybe they were running out of worthy opponents to carry on the endless war.

  • ntvnyr30

    I served in GITMO as a medical officer in charge of the detainees–when there were 600. They had outstanding medical and dental care–better than most Americans. They received “culturally-sensitive” meals. There were arrows in each cell pointing towards Mecca. If there was physical abuse of the detainees, I would have been the first to know. I always ask people, do you think if a soldier or Marine was captured in North Korea, China etc. do you think they would be given “culturally-sensitive” meals and medical or dental care?

    There is no reason to shut down GITMO. The fact that this administration has been talking about it since Day 1 assumes abuse of the detainees. The fact that other politicians have been parroting this same view is disturbing.

  • Hard Little Machine

    What was bizarre was yesterday’s “Hardball” with Chris Matthews taking the position opposed to Obama and the former chief prosecutor of Gitmo shouting they should all be released because there’s no grounds to hold or try any of them.

    I feel like I landed on Planet Stupid.

    • American1969

      No, you’ve arrived in Bizzarro World! Planet Stupid was a long time ago! :)

  • drthomasedavis

    That traitorous cockalorum lounging about the Whitehouse needs to be reminded who does what to whom and how often. Guantanamo is valuable property and prime real estate in which to incarcerate bums like Bernie Madoff and see if he can swindle the bums already incarcerated out of their prayer rugs. Obama must not be allowed to unilaterally close a perfectly good prison just to please some or all his muslim cronies and think a likes. We could use it to lock down illegal aliens and the worst sickos in our much to elegant prisons. What are we? caretakers of rest homes for the worst in our society. How about locking the traitor of Benghazi in Guantanamo for say fifty years? He is no different from any other member of Al Qaeda. He is doing his best to set us up for the Coup de Grace.
    Dr. Thomas E. Davis, Colonel, USA (ret)

    • truebearing

      “cockalorum” Great word for describing the Narcissist-In-Chief. If youdon’t mind, I will borrow it from time to time.

      Obama is intent on releasing all of the Muslims, in solidarity with his fellow Muslims. It wouldn’t surprise me to see him release Khalid Sheik Mohammed. In fact, I’ve always expected it.

  • tagalog

    Well, if this is a tactic to test the waters for a Gitmo closing, I guess we now know how committed the Obama administration is to the idea of prosecuting terrorists under the law as criminals. I guess “prisoner of war” is going to be the standard now, after so many years of “we’re not really at war with anybody, and we need to treat these prisoners as criminals.”

  • American1969

    More proof of what a law-breaking POS Obama truly is. He’s willing to put Americans’ lives at risk at home and abroad so that he can play politics and shut down Gitmo. Let’s send him and the rest of this lawless administration down there to be held indefinitely.
    More proof that Obama is anti-American and hates this country.

  • Microaggressive

    Don’t pay attention to the muslims already in the USA trying to please allah in the best ways possible.

  • truebearing

    There is no doubt McCarthy is right about Obama’s release of the terrorists being derelection of duty, but it is worse than even that. Obama now has an unmistakable pattern of enabling hostile Muslim militaries to harm the US. He released five key Taliban operatives, which will harm American soldiers. He agreed to negotiate with terrorists, which inevitably means more kidnappings will happen. And most seriously, enabled Iran to acquire nuclear weapons in every way he could, including ending sanctions, letting them buy time with fruitless negotiations, releasing billions of dollars that Iran can use to expedite their manufacture of nukes, and meddled with key members of the Israeli government to prevent Netanyahu from taking action against Iran. Obama is an enemy to this country, pure and simple. He is far and away the worst traitor this country has ever had, and may be the worst in human history.

    • American1969

      Right on, truebearing! Well said!

  • Chiron_Venizelos

    IF justice existed in this universe, Gitmo would be the future home of Mr. 0bama, his regime, and quite a few Repubikans. Sadly, this will not be the case because not enough citizens are interested in seeing justice served.

  • notme123

    Gitmo should have been shut down long ago…and all it’s inmates tried, convicted and hung…

  • Docs357

    He wants his killers on the mainland so they can get to the American patriots easier . He’s a treasons muzzy himself he needs to be tried under the patriot act as traitor himself Alfred has a suggestion found in his suggestion box ?

  • Christopher Riddle

    Obongo is”De-Populating”Club Gitmo.This is this WEASEL’s Way of keeping an”Election Promise”!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

  • meanpeoplesuck

    Closing Gitmo is long overdue. There was a McCain clip on the radio today where he is fuming, calling them prisoners of war? Wait! I thought they were “enemy combatants”. Which one is it? I’m so confused! If they are prisoners of war, Senator, doesn;t the Geneva Convention apply and should we not be trying them at this point?

    If the country wanted senile and stupid running the country, we would have voted McCain/Palin in 2008. We say straight through that, thankfully :)

    • UCSPanther

      Then I’ll be sure to direct the Jihadis to your house and you can thank them personally.