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Tuesday, May 28, 2024 | Back issues
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House Republicans Resist Calls to Close Guantanamo

WASHINGTON (CN) - Recidivism is a smaller problem for Guantanamo detainees now than under the previous administration, but Republicans insisted on Capitol Hill today that the prison camp must stay open for this reason.

Preaching at a hearing this afternoon of the House Foreign Affairs Committee, Rep. Ed Royce, a California Republican who chairs this group, said more than 30 percent of detainees released from Guantanamo Bay, so far, actually returned, or are suspected to have returned, to the battlefield.

Lee Wolosky, the State Department's special envoy on Guantanamo closure, meanwhile told the committee that new processes put in place by the Obama administration have brought those numbers down markedly.

A report this month from the Office of the Director of National Intelligence puts the confirmed recidivism rate at just under 5 percent - with seven of 144 detainees released by the Obama administration confirmed of re-engaging, and 12 more suspected.

Those numbers were much higher for the 532 detainees released by the Bush administration - about 21 percent actually reengaged, while about 14 percent were suspected of reengaging, according to the same report.

Both Wolosky and his counterpart at the Defense Department, Paul Lewis, highlighted for lawmakers that Guantanamo serves as a potent propaganda tool for extremist recruitment, while also draining resources and damaging U.S. relations with key allies.

Democrats rallied around the message.

"The only justification for keeping the prison open is fear," Rep. Eliot Engel, D-N.Y., said. "Fear of violent extremism. Fear that our justice system or prison system cannot get the job done, despite all the evidence to the contrary. And fear is precisely what our enemies want to instill in us. And I don't want them to win."

House Republicans would not be swayed, however, even as the dust settles in Brussels after a terrorist attack there by the Islamic State on Tuesday killed 31 and injuring 270.

"ISIS is continuing to threaten and expand in Libya, Afghanistan and elsewhere," Royce continued. "Europe is under siege by jihadists. We are under attack. So unfortunately, we are going to need a detention facility for fanatical terrorists whose processing in the U.S. legal system is unwarranted and simply not feasible. We're going to need that for some time to come."

Wolosky and Lewis tried to assure the committee about the process by which the Obama administration assesses the risk of every Guantanamo detainee.

Each determination requires unanimity, Wolosky said, from the Justice Department, Defense Department, State Department, Homeland Security, Joint Chiefs of Staff and the Office of the Director of National Intelligence after thorough reviews of a detainee's record.

Outcomes for the detainees include keeping them under indefinite detention, referring them for prosecution or transferring those approved for release.

With detainees eligible for full review by the Periodic Review Board every three years, Wolosky said the board has approved 16 detainees for transfer after 29 hearings.

Of the 91 remaining Guantanamo detainees, he added, 36 have been approved for transfer, 10 are being processed in the military commissions system and 45 are designated for ongoing detention.

Though Royce questioned how well transfer countries can properly monitor and surveil released detainees, Wolosky and Lewis both said the process of determining a country's capability is rigorous.


The process includes "a comprehensive interagency review and rigorous examination of updated information regarding the detainee, the security situation in the potential host country, and the willingness and capability of the potential host country to implement and ensure compliance with security measures," Lewis said in his written testimony.

Security assurances include travel restrictions on transferred detainees, information sharing and reintegration or rehabilitation programs that help the detainee re-enter society, Lewis testified.

Both Lewis and Wolosky said they could elaborate further in a closed session.

When the Periodic Review Board does not approve a transfer, the detainee must undergo further review to determine whether ongoing detention is necessary to protect against a national security threat.

Security arguments for keeping the detention facility open hold little sway with outside experts.

Wells Dixon with the Center for Constitutional Rights called it a national-security priority to close Guantanamo because of it provides extremist groups with a "propaganda windfall."

"It's no coincidence that ISIS clothes its victims in orange jumpsuits," Dixon said. "That is a nod to Guantanamo. If you want to prevent people from becoming radicalized, if you want to stop attacks like the terrible attacks in Belgium, it is essential that Guantanamo be closed."

Much of the partisan bickering about closing Guantanamo is ultimately "beside the point," he added, noting that "President Obama has the legal authority now, under the current law, to close Guantanamo."

Though the National Defense Authorization Act puts congressional restrictions on where the detainees can go, Dixon said it contains a provision that lets the president transfer detainees through orders sought from the U.S. District Court in Washington that would bypass those restrictions.

So far the president has been unwilling to use that authority in the face of Republican opposition to close the prison, Dixon said.

"He's not shown any willingness to act boldly or to think creatively about how to do that," Dixon said.

"We think it's delusional to think that Congress is going to acquiesce to the President on closing Guantanamo," he added.

Dixon said that one issue often overlooked in the debate on closing Guantanamo is that detainees will be entitled to full constitutional rights if they are brought to the United States. That includes a six-month limit on indefinite detention.

Dixon said the two categories of detainees who could come to the U.S. include the 55 detainees designated for indefinite detention, what the Center for Constitutional Rights calls "forever prisoners," and those in the military commission system, who could be prosecuted in the U.S.

One sticking point on the administration's plan to shutter Guantanamo is congressional restrictions that currently bar bringing detainees to the U.S. for prosecution. But Dixon said the Obama administration can bypass that restriction as well.

"The president could go to the District Court and ask the judge to strike down the transfer restriction as a violation of the separation of powers," Dixon said. "A judge surely would do so, because it's a clear violation of law to tie the president's hands."

Dixon said the restriction is unprecedented. Never before have such restrictions been placed on a U.S. president in transferring war-time detainees, he said.

Dixon also noted that some detainees eligible for prosecution in the U.S. "would be perfectly willing to plead guilty in federal court in the U.S. and cooperate with the government." Once that happens, the detainee becomes a criminal defendant and the transfer restrictions no longer apply, he said.

"But again, the Obama administration is unwilling to take any action to make those kinds of things happen."

Dixon noted that President Obama campaigned on closing Guantanamo, and ending military commissions and indefinite decision. Yet through his plan to close Guantanamo, Obama is proposing implementation of a regime of indefinite detention in the U.S.

That is unprecedented, Dixon said. He acknowledged the Japanese internment camps and immigration detention centers, which he said are problematic. The difference in the case of Guantanamo detainees is that the administration is talking about holding them in the U.S. forever without charge.

Dixon called it unnecessary.

"The President has the ability to transfer the cleared men, speed up Periodic Review Board process and has the ability to bring people here for prosecution," Dixon said, adding that the Center for Constitutional Rights endorses the latter item.

As for indefinite detention in the U.S., "if he attempts it, we will certainly challenge it," Dixon added.

The Constitution Project is among groups that have criticized the methodology behind the government's report on released Guantanamo detainees "re-engaging" with militants.

Calling the 30 percent figure misleading, they say low thresholds supported the criteria that the ODNI used to classify former detainees as confirmed and suspected.

ODNI "considers re-engagement 'confirmed' if it is more likely than not - i.e., there is a 51% chance - that a former detainee is directly involved in terrorism," the Constitution Project says.

Inclusion in the suspected category has an even lower threshold that requires "plausible but unverified or single-source reporting indicating a specific former GTMO detainee is directly involved in terrorist or insurgent activities," the Constitution Project adds.

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