- - Friday, June 6, 2014


President Obama signed an executive order on Jan. 22, 2009, directing the closure of Guantanamo Bay by that year’s end. Facing continued bipartisan opposition to closing Guantanamo more than five years later, the administration unilaterally emptied it of some of its most deadly detainees. Congress has an obligation to establish a select committee to find out why and to ensure it does not happen again.

For decades, the U.S. government has publicly refused to “negotiate with terrorists.” This serves obvious purposes: Bartering with terrorists provides incentive to terrorist activity. Yet those who condemned President Reagan for ignoring this policy now celebrate trading five notorious terrorist leaders for a reported Army deserter.

The five Taliban commanders swapped for Sgt. Bowe Bergdahl were among the most dangerous held at Guantanamo Bay. The Taliban-aligned Haqqani Network has kidnapped journalists, launched bloody attacks on civilian targets including hotels, deployed suicide bombers who have killed hundreds, and attacked American military and diplomatic posts, including the U.S. Embassy in Kabul on Sept. 12, 2011.

Rather than debating the merits of negotiating with terrorists, the administration curiously refuses to acknowledge it did so. Defense Secretary Chuck Hagel and outgoing White House spokesman Jay Carney described the swap as a Qatari-mediated “prisoner of war exchange.” National Security Adviser Susan Rice asserted that the “prisoner exchange” preserved America’s “sacred obligation” to leave no soldier behind on the battlefield. One wishes this commitment extended to Benghazi or the Department of Veterans Affairs.

Peddling the “prisoner of war exchange” narrative might tame the immediate political backlash, but referring to Guantanamo detainees as prisoners of war may alter the legal landscape governing detention of those responsible for Sept. 11 and other attacks in a manner calculated to compel Guantanamo’s closure.

The White House strategy to bypass the law and shut Guantanamo is audaciously simple. First, by invoking “exigent circumstances,” the president created a precedent for future unilateral transfers predicated upon the president’s perceived Article II authority. Second, using the exigency pretext to clear Guantanamo of what Sen. John McCain described as the “the hardest of the hard core” detainees, the president undercut another justification for its continued operation.

Since the issuance of a Nov. 13, 2001, presidential order, members of al Qaeda, the Taliban and other terrorist organizations are eligible for United States military detention as “enemy combatants.” However, characterizing the trade as a “prisoner of war exchange” may legitimize Taliban claims its members are entitled to protection under the Geneva Convention. Awarding Geneva status to Taliban militants vitiates another Guantanamo rationale and invites further “breakthroughs,” including direct talks with Taliban and other terrorist leaders.

Finally, when defending the Taliban-Bergdahl deal, the administration asserts that the harm to national security presented by keeping Guantanamo open outweighs that associated with returning its inhabitants to the battlefield. When CNN’s Candy Crowley pressed her about the exchange Sunday, Mrs. Rice made the link explicit by stating: “[t]he existence of Guantanamo Bay is itself a detriment to our national security, which is why the president’s prioritized closing it and why we intend to get that done.”

National Security Council spokeswoman Caitlin Hayden reiterated this point Tuesday by asserting: “[w]ith respect to the closure of the detention facility at Guantanamo Bay, the president has said repeatedly … that he believes the continued operation of the detention facility harms our national security … [t]he United States will repatriate, resettle, or prosecute detainees at Guantanamo Bay to the greatest extent possible … .”

At least one member of Congress supports the administration’s extralegal Guantanamo closure strategy. “Guantanamo has been there far too long, and I think that we should get them out of there as quickly as we can … . We’ve been held up from doing that by the Republicans … [s]o I’m glad to get rid of these five people,” Majority Leader Harry Reid, Nevada Democrat, announced Tuesday. Who knew that Sen. Charles E. Schumer, New York Democrat, and other Reid allies who strongly opposed repatriation of Gitmo detainees to stand trial in Manhattan were Republicans?

Mr. Obama is forcing Congress to “choose” between extralegal presidential repatriation of Guantanamo detainees to countries such as Qatar or authorizing their transfer to the United States to face trial in federal court. Faced with this alternative, the administration predicts Congress will agree to provide America’s most dangerous enemies a forum to propagate their ideology before a global audience. However, Congress has a duty to legislate on behalf of its constituents — not to yield to executive coercion. While there may be reasonable ways to close Guantanamo, members of both parties realize this is not one of them.

Congress must establish a select committee (Senate, House or both) to determine why the administration agreed to such a grossly one-sided “prisoner exchange” and whether a purpose was to compel closure of Guantanamo. It should also examine how the trade was negotiated, the legal advice upon which it relied, whether the administration violated U.S. laws or policies, and how to avert future unilateral transfers.

Several current terrorist leaders are former Guantanamo detainees. Congress must ascertain whether recently released extremists are likely to return to the battlefield, even after United States forces leave Afghanistan. After all, no American soldiers were in Afghanistan and Guantanamo was empty on the morning of Sept. 11, 2001.

Congress must also examine why the administration now refers to leaders of a terrorist organization whose tactics are antithetical to the “laws and customs of war” as “prisoners of war.” Finally, it must ensure that neither the law nor national security are further compromised to redeem an improvident campaign pledge.

Robert N. Tracci served as chief legislative counsel and parliamentarian to the House Judiciary Committee, deputy assistant attorney general, and special assistant U.S. attorney.

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