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Speech on the Guantanamo Bay Detention Facility at the Heritage Foundation

December 8, 2015

Contact: Caroline Rabbitt (202) 224-2353

Next month marks the anniversary of President Obama's vow to close the military detention facility at Guantanamo Bay. The president placed great importance on Guantanamo's closure. He chose this initiative-out of all the issues he faced as a new President-as the subject of his very first executive order-first of very, very many. He staged its signing in grand fashion in the Oval Office. And before the cameras, he spoke in solemn tones about the dire need to close Guantanamo in one year's time. One year.

But seven years later President Obama has thankfully failed to make good on that vow. Guantanamo is still operating. And this is in large part because the President's empty rhetoric about closing Guantanamo has not convinced the American people. At the same time, the need to keep hardened terrorists off the battlefield and away from U.S. shores has proved enduring and even more pressing in this time of burgeoning terrorist safe havens in the Middle East and North Africa.

We do not maintain Guantanamo because we want to. We maintain it because it is in the best interest of our national security to do so. In this way, Guantanamo is not a unique site-not sui generis or separated from historical practice, as many of its critics say. It is, in plain terms, a humane and professional wartime military prison: the unpleasant but inescapable necessity of any conflict, well-grounded in the laws of war. Guantanamo was created to house captured combatants and has always been set for closure once hostilities end.

But, unfortunately, those hostilities have not ended. In fact, they have intensified. We remain engaged in a long war against radical Islamic jihad. It is not a war we started. But it is a war we must be committed to winning.

This long war has no frontlines and no specific theaters, traditionally understood. And the weapons of our opponents are not merely conventional, but also ideological. The Islamic State and Al Qaeda use modern social media and encrypted communication apps to radicalize individuals across the globe, including our fellow Americans, to spur them to wage attacks from within. We saw the bitter fruits of this tactic in Paris and just days ago in California.

This is why we need a detention facility like Guantanamo. It is a dedicated facility in a remote location where we can house detainees engaged in a global conflict. It is secure from attack and infiltration. It allows us to concentrate trained experts in interrogation in one place to extract intelligence of paramount importance in uncovering and stopping plots against Americans. It can be and has been visited repeatedly by the International Red Cross and other human-rights groups for observation in an open, regular, and transparent manner.

And Guantanamo enables us to isolate detainees who would otherwise seek to spread their radical ideology beyond their prison walls. President Obama and others have pushed to bring the remaining Guantanamo detainees to the United States and house them in federal supermax prisons. The ugly truth that President Obama doesn't share is that bringing these terrorists to facilities in the U.S. will have enormous costs in terms of tax dollars and compromised U.S. national security. The construction of new facilities and upgrades to existing facilities will require close to one billion dollars. And the prospect of commingling terrorists with the normal prison population raises the serious risk that hardened criminals will be radicalized. If released from prison, they may commit attacks on the homeland. Even if not released, they will be able to communicate their new virulent ideology to others.

If new facilities are not to be constructed, we face the problem that Supermax prisons are at full capacity. That means in order to accept Guantanamo detainees, other highly dangerous criminals will have to be transferred from supermax facilities to lower security prisons.

In the end moving Guantanamo detainees to the United States will created a federal prison population that is more dangerous, more jihadist, and much more costly to keep locked up. We will also be creating what terrorists abroad will no doubt consider "mini-Guantanamos," ones that will perhaps become targets for attacks and jailbreak attempts, as General John Kelly, commander of Southern Command, testified this year to Congress.

This makes one wonder, as terror threats have grown, why haven't we taken the common-sense course? This is the course of keeping bad guys where they are and where they belong, while also sending more terrorists to Guantanamo. But, the president has done the opposite and embarked on an ideological and quixotic pursuit of Guantanamo's closure. While still searching for an answer to closing the facility permanently, his temporary solution has been to empty it by releasing its captives back to the battlefield and establishing random numeric goals at the facility. Let's examine this short-sighted policy in more depth.

***

At times in recent years, U.S. leaders have been tempted to move off a war footing, declare a narrow and premature victory, and return to a pre-9/11 mentality. President Obama has in large part succumbed to this temptation. In fact, he campaigned for reelection on it. He insisted that al Qaeda was "on the road to defeat," that "the tide of war is receding," and that we should begin to "nation build at home."

The president's commitment to this desperate fantasy-even in the face of the Islamic State's rise and the spread of al Qaeda affiliates-has led him to discount the danger of releasing Guantanamo detainees to join the fight again.

But unfortunately, those dangers are all too real.

In 2007, the U.S. released Mullah Abdul Rauf, a former Taliban commander who claimed to have been a simple bread deliveryman. In the interim, he reestablished himself as a warlord in southern Afghanistan, one who pledged his allegiance to the Islamic State, and led a group of insurgent fighters. Earlier this year, U.S. forces had to face him again. Thankfully, they killed him.

Another such dangerous example is the story of Shaker Aamer, a Guantanamo detainee who was recently transferred to the United Kingdom. This was done without the concurrence of the then-Chairman of the Joint Chiefs of Staff, Martin Dempsey. Why did General Dempsey disagree with this transfer? I've asked the Pentagon and I'm awaiting an answer. But it is no secret Aamer was a dangerous terrorist before he was captured, was a non-complaint detainee while at Guantanamo Bay, and would likely continue to cause trouble if freed.

I traveled to the UK recently. And British intelligence and law enforcement officials told me that they are stressed to the breaking point trying to handle UK fighters returning from the Syrian and Iraqi battlefields. On top of that immense burden, President Obama has added a hardened terrorist, doubtless with significant pressure and strain on our relationship.

The Rauf and Aamer cases are merely two amidst many. Six hundred and fifty-three detainees have been released from Guantanamo. Each has gone through stringent measures designed to evaluate their dangerousness before release and to arrange for appropriate detention and monitoring after their release. Yet, despite these measures, 196 are confirmed or suspected of having returned to the battlefield-a 30% recidivism rate.

That 30% figure is made even more stark when measured against the confirmed recidivism rate of Guantanamo detainees who have not been released, which of course is zero.

One hundred and seven detainees remain at Guantanamo today. Many if not all of these are the worst of the worst, detainees so dangerous that their home countries will not accept them. If we released them all, and the historical recidivism rate of 30% holds, we're looking at possibly 32 more terrorists able to plot, finance, organize, recruit, and execute operations against the United States.

I have the privilege of serving as a Senator from Arkansas, elected to represent the people of my state and, first and foremost, to keep them safe. I also had the honor of serving two tours in Iraq and Afghanistan, where my fellow soldiers and I faced terrorists daily. So if given the choice between one policy that will put 32 more terrorists in a position to threaten Arkansans or soldiers in the field, and another policy that completely eliminates those possibilities, that's an easy choice for me. And it should be for any policymaker.

***

But, proponents of closing Guantanamo offer arguments to the contrary.

A central claim is that the facility is used as a recruiting tool by terrorists. On its face, the claim may make some intuitive sense. But its foundation is flimsy-grounded more in conjecture and anecdote than empirical proof. Researchers who have looked at the claim show it to be wanting in fact. The number of times Guantanamo is mentioned in al Qaeda and al Qaeda-affiliated propaganda, pales in comparison to references to Israel and Jews, to Iraq, to Afghanistan, to UAV strikes, and even the dispute between India and Pakistan over Kashmir. Moreover, mentions of Guantanamo in terrorist propaganda have trended downward in recent years, particularly in the materials of newer terrorist organizations like the Islamic State. And to the extent Guantanamo is mentioned, it is usually as one amidst a laundry list of supposed offenses against the Muslim world, not as a central fixation of the terrorist mindset.

This is not surprising. The motivations of radical Islamic jihadism are much larger than these specific issues and grievances. The ideology is premised on a narrative of conquest, in the spiritual as well as earthly world. They attack us not for what they believe we have done to them, or to Muslims around the world. They attack us because we are infidels whose civilization stands in the way of the realization of a new, global caliphate.

Does the president-or anyone for that matter-seriously believe that the closure of Guantanamo would convince terrorists to disarm or grievously undermine their recruitment efforts? Will the Islamic State stop its bloody march across the Middle East and North Africa if detainees are housed in various locations rather than a single one? The notion is, quite simply, absurd. Terrorists attacked us before there existed a Guantanamo detention facility, and they will try to attack us regardless of its closure.

If a terrorist's grievance was not Guantanamo, it'd be the presence of U.S. military bases in Muslim nations. If not those bases, it'd be the loss of Jerusalem. If not Jerusalem, the grievance would be the loss of Andalusia to Christendom. Jihadism cannot be placated unless we're prepared to give up the whole of Western civilization. Once we begin to pull the string of appeasement toward a radical ideology of conquest, we will find it never stops.

Beyond this recruitment argument, critics also like to describe Guantanamo as a "law-free zone" where the government does not abide by the strictures of applicable U.S. and international law, and where conditions are deplorable. The New York Times editorial board in September blasted the facility as a place of "legal limbo," that "festers on the edge of the constitution." In reductive fashion, critics assert that operating Guantanamo shocks the conscience, that Guantanamo is simply not "who we are."

This hyperbole is not true and has never been true. Since the first detainee was housed at Guantanamo, the United States has required a review of detainees by military tribunals, and since that time Congress has established rules for military commissions crafted along the guidelines enunciated by the Supreme Court. Detainees are entitled to the constitutional writ of habeas corpus to challenge their detention-what has been called the "Great Writ," and armies of the best lawyers in the United States provide free, zealous representation to the detainees before U.S. courts, often all the way to the Supreme Court. In fact, the number of lawyers devoted to detention cases far exceeds the number of detainees in Guantanamo. The same cannot be said for the normal American prison population. Guantanamo is far from a "law-free zone." At no time in any war in all of history-let alone U.S. history-have military detainees enjoyed such a depth and breadth of procedural rights.

And at no time have they ever received such a heightened level of care. Anguished pronouncements about the conditions at Guantanamo are hard to square with the extraordinary efforts made to treat detainees in a humane fashion, efforts that go far beyond the standards of international law. The International Red Cross has made 111 regular visits to the facility since it was opened, monitoring conditions and speaking with detainees. One hundred medical staff-including specialized medical linguists-are dedicated to the detainees' health. They provide services including radiology, surgery, dental, and mental health services. Detainees enjoy up to 12 hours of recreation a day, with access to academic classes, a wide array of media, religious services, and various group activities and common spaces.

To the extent there is any legal or humanitarian deficiency at Guantanamo, it is hard to understand how housing detainees indefinitely in other nations' facilities or in U.S. supermax prisons-the alternatives proposed by the president-would improve their plight. If housed in supermax prisons, their procedural rights would not change, and their relatively cushy treatment would likely be more circumscribed. And as for detention facilities abroad, the U.S. cannot guarantee that other nations would offer a similar level of legal rights or humanitarian treatment. In most cases, the legal rights and treatment detainees would hypothetically receive would be far worse.

Furthermore, any humanitarian assessment of Guantanamo must also take into account the actions the president has taken to make closure more feasible. He's embraced battlefield methods of questionable tactical and moral value, ones geared toward minimizing the number of detainees we capture.

The president has greatly accelerated the use of strikes by unmanned aerial vehicles on suspected terrorists, far outpacing the strike rate of President George W. Bush. Those terrorists who are occasionally captured are generally held by third-party countries in facilities whose security and conditions fall far below international standards, and the world-class standards of Guantanamo. And the president has moved captured terrorists into the U.S. civilian criminal justice system, where they enjoy heightened procedural rights.

From a tactical perspective, these methods either make impossible or greatly limit our ability to interrogate and gather intelligence from terrorists on their organizations and plots. While I strongly support UAV strikes on known terrorists where necessary, I do not support them as a method of avoiding the burden of capturing and interrogating a terrorist which is far more preferable. You cannot easily obtain valuable intelligence from terrorists who are dead, held by other powers, or protected by the Fifth Amendment right against self-incrimination. And make no mistake: the interrogation of detainees at Guantanamo has yielded immeasurable benefits. Information obtained from detainees at Guantanamo has been described by the CIA as "the lead information" that enabled the agency to recognize the importance of a courier for Osama bin Laden, a crucial understanding that lead to bin Laden's secret hideout in Pakistan and the U.S. raid that killed him. It is this kind of information that we are losing by not making greater use of Guantanamo.

***

The president may not acknowledge the internal contradictions of his push to close Guantanamo. But the American people-and their elected representatives in Congress-thankfully do. The U.S. Congress, by veto-proof majorities, has voted to prohibit the transfer of Guantanamo detainees to U.S. shores. Just last month the President signed the National Defense Authorization Act, which contained an amendment I offered to strengthen the reporting requirements for Guantanamo Bay detainee transfers by giving Congress more insights into how detainees will be monitored after they are transferred. It is shocking that, in many instances, the U.S. and countries accepting Guantanamo detainees do not enter into formal written agreements as to how detainees will be housed and kept from returning to the battlefield. One has to look no further than the press reports associated with transfer of five hardened detainees to Uruguay just last year. These terrorists were given housing a few short blocks away from the U.S. embassy and would repeatedly show up at the U.S. facility. Should any American be forced to show up at their place of work along with hardened terrorists trained by al-Qaeda and the Taliban?

But, unfortunately, with this president, a duly passed statute never fully resolves the matter. President Obama has shown a disturbing penchant to ignore laws-even ones he personally signed-to reach for unilateral, executive actions that upend our constitutional order and ignore the will of the American people. Look at his transfer of five hardened Taliban commanders to Qatar, in exchange for Sergant Bowe Bergdahl, which even the GAO concedes violated the 30-day statutory-notification requirement. And he has raised thinly veiled threats to do so again in order to bring Guantanamo terrorists to U.S. soil and close Guantanamo for good.

We should be clear: if the president issues such an order, it would be the most brazen assertion of executive power in over a century, and spark a grave constitutional crisis. Even those members of Congress who support the closure of Guantanamo would likely rise in opposition to what could only be seen as an extraordinary extralegal usurpation of Congress's power.

According to longstanding constitutional doctrine, the president's power is at is lowest ebb when he acts in bald defiance of an explicit or implied congressional prohibition. For such an action to survive judicial scrutiny, the president must possess exclusive constitutional authority to take the action. In the few cases in which such a conflict has arisen, this is usually a hard call. But that's not so here.

The Constitution empowers Congress-not the president-with the power to "make Rules concerning Captures on Land and Water," an explicit reservation of authority to the legislative branch. Further, Congress possesses clear power to control U.S. borders and make rules regarding immigration and naturalization-including rules governing the movement of detainees to U.S. soil. To claim that Congress has no power in these areas would be ludicrous-the opposite is true. This is why recent Supreme Court and appellate precedents in the Guantanamo context-from Hamdi to Hamdan to the D.C. Circuit's holding in Kiyemba-indicate that the President cannot trump legislation regarding wartime transfers of detainees to U.S. soil.

President Obama prides himself on his lawyering acumen, and regularly invokes his time as a constitutional law lecturer. As he mulls whether to invite a clash between the political branches that will do much damage to the legal fabric of our republic, I hope the president considers what his younger self would say to a classroom full of first-year law students the day after his executive order is issued. It would be a demoralizing and disillusioning lecture, one that would be unable to ground the action in extant law, and that would reveal the cavalier willingness of a president-in whom so many placed so much hope-to circumvent the constitutional order to achieve political ends. Or, for that matter, he could simply harken back to his campaign speeches in 2008 about President Bush's supposed excesses.

***
Media coverage and commentary of Guantanamo often focuses on the plight of the 107 detainees that remain there. Commentators dwell on the number of years they have been in custody, and the number of years that lie ahead for them. They wallow in the rose-colored narratives put forth by the detainees' lawyers about how the detainees were simply low-level cooks or tea boys, caught up in the geopolitical tides of a war on terror that they hardly understood and were not responsible for. These commentators have the privilege of living in blissful ignorance, never having had the burden of reading classified files on these detainees that lay bare the horrible atrocities in which they participated.

Further, detainees are by no means protagonists in the drama surrounding Guantanamo. And they are also not the sole actors in it. While many fixate on the detainees, my mind focuses on others.

I think of the members of the U.S. Armed Forces who everyday guard and maintain Guantanamo. Earlier this year I had the opportunity to lead a congressional delegation to Guantanamo Bay where we visited with these fine men and women who do their duty in a thankless job far from home. On a daily basis they must endure the verbal assaults of detainees in addition to grotesque physical affronts. To those on the front lines serving at Guantanamo Bay, I thank you for your service.

I think of the soldiers in the field who braved death to capture these detainees, and who now see many of them being released to once again take up arms against their brothers.

I think of innocent lives taken and destroyed by these terrorists on 9/11, in terrorist attacks that predated that fateful day, and in the war that unfurled in its aftermath and continues to this day.

And I think of the individuals who will be killed and the societies that will be destabilized by the recidivists we have already released from Guantanamo, and by the recidivists the president may release in the future.

When the president, members of Congress, and the American people consider Guantanamo, it is these people we must be sure to remember. We must recognize the wider scope of the long war that jihadists are waging against us. And for as long as that war is going on-until the time we finish and win this war-Guantanamo Bay must remain open.