House Brawls on Future of Guantanamo Bay

     WASHINGTON (CN) — Plans to shutter Guantanamo Bay met stiff resistance Tuesday on Capitol Hill as members of a House committee considered how to handle the detention center’s remaining prisoners.
     Members of the House Oversight and Government Reform subcommittee seemed divided sharply on the Periodic Review Board process, and the perceived risks with closing the prison.
     The Obama administration has recently ramped up its effort to sift through the 80 remaining detainees to determine who can be transferred into satisfactory security arrangements to countries that agree to take them. This detainee population was previously considered too dangerous to release, but the U.S. has lacked evidence to prosecute these so-called “forever prisoners.”
     One longtime Afghan detainee, known only as Obaidullah, won a transfer order from the Guantanamo review board on Friday, just ahead of Tuesday’s national security subcommittee meeting.
     Though the United States previously accused Obaidullah of conspiracy and providing material support for terror, the Obama administration later dropped these charges.
     Anne Richardson, an attorney for the detainee with Public Counsel, applauded the decision to release her client.
     “We don’t know when and where he will be transferred, but after being held nearly 14 years without trial, we look forward to the day when he will finally be reunited with his family, including his daughter who was only a few days old when he was taken into custody,” Richardson said in an email.
     The Periodic Review Board has cleared 28 of the remaining captives for transfer, sparking concerns about the possibility that these men will return to the battlefield. So far, about 17 percent of transferred detainees have returned to the battlefield, with another 13 percent suspected of re-engaging.
     Thomas Joscelyn with the Foundation for Defense of Democracies said the transfer of detainees, which requires extensive security arrangements, is not risk-free. He noted that Ibrahim al-Qosi, who was held at Guantanamo from 2002 to 2014, re-emerged as a prominent figure in al-Qaida in the Arabian Peninsula at the end of last year, as he reported in February.
     “Qosi received a favorable plea deal from prosecutors in the military commission system in 2010,” Joscelyn said in his written testimony. “Two years later, he was sent to his native country of Sudan. Since December 2015, AQAP has released several messages featuring Qosi.”
     AQAP is short for al-Qaida in the Arabian Peninsula.
     Joscelyn highlighted the arrest in February of Hamed Abderrahaman Ahmed, whom the U.S. transferred from Guantanamo 12 years ago. Spain authorities have charged Ahmed with running an Islamic State recruiting network.
     As compared with the Bush administration, Joscelyn said, the recidivism rate of detainees transferred by the Obama administration is much lower: 111 to 7, respectively. Part of that can be attributed to the former transferring detainees to countries where jihadists are not engaged in insurgencies, Joscelyn aded.
     “This is, on balance, a smart way to transfer otherwise risky detainees. It means that former detainees who may wish to rejoin the jihad will have a more difficult time doing so,” according to written testimony from the witness.
     But Joscelyn cautioned that the recidivism rate for Obama transfers could grow, noting the likelihood that U.S. intelligence does not keep track of all transferred Guantanamo detainees.
     One way to address this issue is putting the remaining forever prisoners on trial, he said.
     “In my mind there are dangerous detainees who should be tried and can be tried, and that would keep them from going back to the battlefield for sure,” he added.
     Retired Navy Cmdr. Kirk Lippold told the subcommittee that Guantanamo is an invaluable intelligence gathering tool.
     “The failure to use Guantanamo Bay has made the U.S. less safe and more vulnerable since we no longer have a facility with its unique capabilities to leverage the intelligence advantage that our nation could possess with its use,” Lippold said.
     As the former commander of the USS Cole, Lippold is no stranger to the dangers posed by groups like al-Qaida and the Islamic State. In 2000 al-Qaida launched a suicide attack on the Cole off the coast of Yemen that killed 17 sailors on board.
     Lippold said Guantanamo should be “the crown jewel in the intelligence effort to defeat transnational terrorist groups like al-Qaida and ISIS.”
     “It’s only operationally, when you understand how your enemy works, that you can target them, you can disrupt them and then eventually defeat them,” he told the subcommittee.
     “Today we are taking the morally lazy way and we’re using drone strikes,” Lippold said. “Every drone strike that we use is taking out a potential intelligence asset that perhaps we should go after and capture.”
     Lippold testified in strong favor of keeping the prison open and operational, citing the right of the U.S. under the Geneva Conventions and international laws of war to detain combatants captured on the battlefield, and hold them until the end of the conflict.
     When the War on Terror will end remains an open-ended question.
     Former General Counsel of the Navy, Alberto Mora, said in written testimony to the subcommittee that there is no significant legal advantage to keeping detainees at Guantanamo over U.S. federal detention facilities, because the prison is no longer outside the jurisdiction of U.S. federal courts.
     “Starting with Hamdi v. Rumsfeld, the Supreme Court has stepped in four times since 9/11 to assert federal-court jurisdiction over the base,” he said.
     U.S. detention facilities currently house 443 convicted terrorists in 21 states, including high-level al-Qaida plotters and a former Guantanamo detainee, he said.
     Noting the nonexistence of a zero-risk option on Guantanamo and other national-security issues, Mora said “it would be imprudent, unwise, and unlawful to simply hold all detainees indefinitely without charge or trial based on suspicion that they may in the future engage in potentially dangerous acts.”
     “For these reasons, it is my sense that the PRB process appears to be responsibly assessing the potential recidivism risks associated with detainee transfers and that its transfer recommendations merit support,” Mora added.

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