One of the first orders of business for the new Republican majority in Congress is to block President Barack Obama's plans to continue transferring detainees out of Guantanamo and scuttle his efforts to permanently shutter the detention facility before he leaves office.
At a news conference on Tuesday on Capitol Hill, Sen. Kelly Ayotte, flanked by Senate Armed Services Committee Chairman John McCain, Senate Intelligence Committee Chairman Richard Burr, and Armed Services Committee member Sen. Lindsey Graham, unveiled new legislation — the Detaining Terrorists to Protect America Act of 2015 — that calls for a moratorium on the transfer of medium- and high-risk detainees out of Guantanamo.
The bill would also prohibit the transfer of detainees to the United States and to Yemen, which Ayotte referred to as the "Wild, Wild West for terrorists." Of the 127 detainees who are being held captive at Guantanamo, 80 are Yemenis and 50 of those men have been approved for transfer by the Bush and Obama administrations. The Obama administration has transferred 27 detainees Europe and Latin America since last May, but none have been transferred to Yemen. Administration officials have indicated that dozens of other detainees would be released in the months ahead.
Ayotte, McCain, and Graham accused Obama of trying to fulfill a 2009 campaign pledge to shut Guantanamo and ignoring risks the transfers pose to the national security of the United States.
"It's clear that we need a time-out so that we do not re-confront the terrorists that we had captured and are currently in Guantanamo," Ayotte said, citing a 30 percent recidivism rate in which detainees are said to have re-engaged or are "suspected" of re-engaging in terrorism.
But the New Hampshire Republican, who told reporters at her news conference that the "primary purpose of our government is to keep the American people safe" as opposed to making laws, is using a flawed analysis, according to the former State Department envoy in charge of closing Guantanamo.
"Opponents of closing Guantánamo… cite a 30 percent recidivism rate among former detainees," wrote Cliff Sloan, who worked with foreign governments and negotiated resettlement deals for detainees, in a New York Times op-ed published last week. "This assertion is deeply flawed. It combines those 'confirmed' of having engaged in hostile activities with those 'suspected.' Focusing on the 'confirmed' slashes the percentage nearly in half. Moreover, many of the 'confirmed' have been killed or recaptured."
'If a detainee no longer poses that risk of re-engagement, then there's no reason to detain him. The new bill would detain people because they posed a risk in the past, even if they no longer pose a risk. That's nonsensical and contrary to the purpose of detention.'
A task force made up of representatives from the Departments of Defense, Homeland Security, Justice, and State, as well as from the Joint Chiefs of Staff and the Director of National Intelligence, reviews the cases of the detainees transferred under Obama. In each case, a decision was made that the detainee in question did not pose a risk to national security.
An administration official speaking on condition of anonymity told VICE News that the interagency process "thoroughly reviews all potential transfers, including information about possible detainee reengagement in terrorist activities."
"A decision to transfer a detainee is made only after an interagency determination that a potential transfer can be implemented consistent with the law, our national security interests, and our humane treatment policy," the official noted. "We take any incidence of re-engagement very seriously. And we work in close coordination through military, intelligence, law enforcement, and diplomatic channels to mitigate re-engagement and to take follow-on action when necessary. Over 90 percent of the Guantanamo detainees transferred during this administration are neither confirmed nor even suspected of having re-engaged in any terrorist or other hostile activity."
Ayotte's bill would repeal language in the 2014 National Defense Authorization Act that made it easier for the administration to transfer detainees who are already cleared for release.
The New Hampshire senator also hinted at another reason for keeping Guantanamo open by referring to the fact that the Obama administration does not have an alternative to the detention base, which a subsequent Republican administration could perhaps use to hold terrorists captured in the future.
"We have not seen a detention and interrogation policy from this administration that ensures that those we have captured on the battlefield and those that are terrorists who have sought to do harm to us and our allies are being detained and fully interrogated," Ayotte said. "It's so important when we capture a terrorist or anyone who is working with them that we ensure we get the maximum amount of information to protect our country and to keep not only our allies but America safe."
Under current protocol, a suspected terrorist is held and interrogated on a Naval ship or overseas by the CIA for a short period after being captured. The individual is then read his Miranda rights and transferred to the US to face prosecution. Republicans have complained that the duration of this intermediate detention is insufficient and deprives the US of valuable intelligence. Alternatively, Ayotte's proposed legislation would allow the Obama administration to send new detainees to Guantanamo for "law of war detention and interrogation and then bring them to the United States."
Sen. Graham alluded to this last week in the aftermath of the terrorist attacks in Paris.
"President Obama should immediately change his interrogation and detention policies as we are gradually losing the ability to detect, disrupt, and prevent future terrorist attacks," he said.
An aide to Graham told VICE News that the senator is concerned about the administration's ability to collect actionable intelligence when it captures a terrorism suspect.
"Basically anytime we capture of a terror suspect nowadays, we hold them for a very limited amount of time, try to get information — which we may or may not get under the time constraints — and then Mirandize them, telling them they have the right to remain silent," the aide said. "Sen. Graham believes we should hold these types of suspects as enemy combatants, which allows humane, lawful interrogation for an unlimited amount of time. Then if you want to, at some point in the future, they can be turned over for trial in federal district court.
"As for detention, when we capture a terror suspect today we don't have any place to long-term detain them. President Obama isn't using Gitmo anymore. But if we do capture a terror suspect, where are we going to put him? Putting them in jail is fine, but the point is to gather intelligence to stop future attacks or plots."
Ned Price, a White House National Security Council spokesman, said recently that it is not true that the administration's detention policies prevent it from acquiring actionable intelligence.
"As a general rule, the government will always seek to elicit all the actionable intelligence and information we can from terrorist suspects taken into our custody," Price said.
Graham made clear on Tuesday that Obama's plans to shutter Guantanamo "to fulfill a campaign promise" proves that he is unfocused and that he misguidedly thinks the war against radical Islam is over.
"I fear he's disconnected from reality and simply doesn't grasp the serious threats we face," Graham said. "The world is growing more volatile by the day. For the United States to now be releasing hardened jihadists from Gitmo, at this stage in the War on Terror, is dangerous and should be vigorously opposed."
Ayotte said the administration has not been transparent with the American people about who it is releasing and the conditions of their release. She said her legislation would "increase transparency" and require the Secretary of Defense to submit an unclassified report providing details on Guantanamo detainees who have at any point in time been designated or assessed by the "as a high- or medium-risk threat to the US, its interests, or its allies."
"The purpose of detention at Guantanamo and generally during war is to prevent the detainee from re-engaging in the battle," Daphne Eviatar, senior counsel at Human Rights First's Law and Security Program, told VICE News. "If a detainee no longer poses that risk of re-engagement, then there's no reason to detain him. The new bill would detain people because they posed a risk in the past, even if they no longer pose a risk. That's nonsensical and contrary to the purpose of detention."
Eviatar hopes that the White House will veto the bill if the Senate and the House pass it. She believes Ayotte is less concerned with national security and more interested in preventing Obama from following through on his commitment to close Guantanamo. She also pointed out that McCain's comments Tuesday about keeping Guantanamo open contradict what the Arizona senator said a year and a half ago at the height of a mass hunger strike, in which he called for the closure of the facility.
"We continue to believe that it is in our national interest to end detention at Guantanamo, with a safe and orderly transition of the detainees to other locations," McCain said in a joint statement with Democratic Sen. Dianne Feinstein in June 2013. "We intend to work, with a plan by Congress and the administration together, to take the steps necessary to make that happen."
McCain, who has been Obama's strongest Republican ally on Guantanamo, indicated that the Armed Services Committee would take up Ayotte's legislation later this year. He said he and his Republican colleagues would drop the issue "in a New York minute" if the president delivers a plan regarding certain detainee transfers.
Patrick Ventrell, a White House National Security Council spokesman, told VICE News that the administration has said repeatedly that the "continued operation of the Guantanamo Bay detention facility weakens our national security and must be closed."
"The American people should not be spending hundreds of millions of dollars a year on a facility that harms our standing in the world, damages our relationships with key allies, and emboldens violent extremists," Ventrell said. "We have repeatedly called upon the Congress to work with us to close the detention facility at Guantanamo once and for all. Individuals from across the political spectrum have recognized that the facility should be closed. Congress should remove unwarranted and burdensome restrictions that curtail the executive branch's options for managing the detainee population. The president has consistently opposed these restrictions. Congress should work with us to remove these restrictions, not pass new ones."
Left unsaid in the discussion about Guantanamo amid talk of recidivism is that it remains unclear whether the detainees held there were ever actually involved in terrorist activities. It has been well documented that intelligence gathered at the base asserting that some detainees had ties to al Qaeda was obtained through coercive interrogations, but these claims continue to be cited.
Additionally, a former Bush administration official Lawrence Wilkerson said in a sworn declaration several years ago that "many of the prisoners detained at Guantanamo had been taken into custody without regard to whether they were truly enemy combatants, or in fact whether many of them were enemies at all." He also revealed that American forces had relied on Afghans and Pakistanis to turn over prisoners, many of whom had been turned over for bounties amounting to as much as $5,000 each.
"Such practices meant that the likelihood was high that some of the Guantánamo detainees had been turned in to US forces to settle local scores, for tribal reasons, or just as a method of making money," Wilkerson said.
He stated that Bush administration officials believed that "innocent people languishing in Guantanamo for years was justified by the broader war on terror and the capture of the small number of terrorists who were responsible for the September 11 attacks, or other acts of terrorism."
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