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December 31, 2011

Guantanamo Transfer Restrictions Undermine National Security, Rule of Law

Obstructing the transfer of detainees out of Guantánamo impedes the President’s ability to close the prison, which serves as a recruiting tool for al Qaeda. 

Admiral Dennis Blair, former Director of National Intelligence, said: “I agree…that the detention center at Guantanámo has become a damaging symbol to the world and that it must be closed.  It is a rallying cry for terrorist recruitment and harmful to our national security, so closing it is important for our national security.”

Current restrictions prevent transfers of Guantánamo detainees to the United States for civilian criminal trial, blocking one of the most effective tools for incapacitating terrorists. 

Federal courts have experience with nearly 500 international terrorism-related trials since 9/11.  Under current restrictions imposed by Congress though, Guantánamo detainees accused of crimes must face trial by untested military commissions, which have completed only seven cases since 9/11.

Current restrictions make it difficult to transfer even cleared Guantánamo detainees who the government has determined it is in the national security interest to transfer. 

To transfer cleared detainees to their home countries, or to third countries, the Secretary of Defense must meet impractical certification requirements, which are not tied to any realistic assessment of risk.  However, under updated guidelines, the Secretary of Defense, in consultation with the Director of National Intelligence and with the concurrence of the Secretary of State, can waive some of the requirements and take alternative actions to secure the transfer of detainees consistent with national security interests.  Fifteen of the nation’s most respected retired generals and admirals have written a letter to the President urging him to direct his administration to use this expanded national security waiver to secure the transfer of additional cleared Guantanamo detainees.

Whatever recidivism risk is presented by transferring Guantánamo detainees is minimal compared to the substantial costs of an indefinite detention policy. 

Major General William L. Nash, USA (Ret.) said: “Releasing a handful of foot soldiers back to their homes does not increase any marginal risk to U.S. operations.  Keeping someone in prison that we do not have any reason to do so, on the other hand, does, because it gives Al Qaeda propaganda tools used to fill their coffers with new recruits.  We must cease focusing on recidivism numbers that are flimsy at best, and focus on ways to disincentivize terror recruiting.”

The recidivism figures produced by the Department of Defense are not credible. 

Previous recidivism estimates counted participation in a documentary film or writing an op-ed for The New York Times as “returning to the fight.” Though the Defense Intelligence Agency estimates that one in four Guantanámo detainees are recidivists or are suspected of recidivism, Obama administration officials have conceded that based on the criteria used, “recidivists” could “very possibly not be engaged in activities that are counter to our national security interests.”  Moreover, independent analysts report that only six percent of Guantánamo detainees are confirmed or suspected of returning to terrorism. By contrast, 43.3 percent of state prisoners in America are considered recidivists.

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