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Home / Blog / Senator Kirk’s Pro-Gitmo Bill Ignores the Facts, and the Experts
May 02, 2016

Senator Kirk’s Pro-Gitmo Bill Ignores the Facts, and the Experts

Over the weekend Senator Mark Kirk (R-IL) wrote an op-ed titled, “Why Gitmo Can’t Be Closed,” promoting his bill that would tighten the already unreasonable restrictions on transferring detainees—even those cleared by the nation’s military and intelligence agencies—out of the controversial prison. But Kirk ignores the facts on how transfers from Guantanamo actually work, as well as the voices of prominent national security leaders who advocate closing the prison.

Kirk notes, “The intelligence community agrees 30 percent of terrorists released from Gitmo are known or suspected to have re-engaged in terrorism.” Kirk leaves out the fact that since the Obama Administration instituted more stringent review mechanisms, the percentage of former detainees confirmed or suspected of engaging in terrorist or insurgent activities post-release has plummeted—from 20.9 percent confirmed and 12.7 percent suspected for Bush Administration transfers to 4.9 percent confirmed and 8.3 percent suspected for Obama Administration transfers.

Moreover, the category of “suspected of re-engagement” is based on extremely thin evidence: “Plausible but unverified or single-source reporting,” according to the Office of the Director of National Intelligence. As one Department of Defense official put it, “Someone on the ‘suspected’ list could very possibly not be engaged in activities that are counter to our national security interests.” Looking only at the “confirmed” category, the percentage drops to a less-scary total of 17.5 percent of all detainees released.

Unlike the Bush Administration’s transfer decisions—based on flawed intelligence assessments that stranded detainees who were the victims of mistaken identities—the Obama Administration transfers have been reviewed by the Department of Defense, Department of Justice, Department of State, Department of Homeland Security, the Office of the Director of National Intelligence, and Joint Chiefs of Staff. Under current policy, prior to any transfer, the administration asks these agencies to come to a consensus that that a detainee transfer would not pose an unmanageable threat to the United States. The Secretary of Defense must sign off on the transfer as well.

Kirk’s amendment ignores the conclusions of these agencies and would instead institute permanent country-specific bans on transfers. It would also prevent any transfers to prisons in the United States, a key part of the Obama Administration’s plan to close the prison. But U.S. prisons already safely hold hundreds of individuals convicted of terrorism-related crimes, as well as many prominent al Qaeda leaders and operatives. None of these prisons or the surrounding communities have faced attacks, and prison officials have testified that they could handle Guantanamo detainees.

The op-ed cites the case of Ibrahim al Qosi, a former Osama bin Laden aide and Guantanamo detainee who was freed from the prison in 2014 and returned to his native Sudan, having served his military commission sentence after pleading guilty to charges of conspiracy and material support for terrorism. Qosi surfaced earlier this year in Yemen as a spokesman for Al Qaeda in the Arabian Peninsula. While it is indeed disconcerting that Qosi has emerged as a public face for al Qaeda’s Yemen branch, if the senator is really concerned with Qosi’s release, then his target should be the defective Guantanamo military commission system.

U.S. federal courts effectively handle terrorism cases regularly, have access to more charges (including charges of conspiracy and material support), and hand out lengthy sentences for al Qaeda members—recently sentencing Osama bin Laden’s son-in-law to life in prison. The Guantanamo military commission system, in contrast, is a mess. Half of its eight convictions were overturned because courts found that charges like conspiracy and material support aren’t war crimes that can be brought in the commissions. If Kirk wants lengthy prison sentences for al Qaeda members and other terrorists, he should advocate for using federal courts for terrorism cases. Instead, his bill continues the prohibition on transfers to the United States, even for trial.

Kirk also makes the claim that “maintaining Gitmo is the best way to safely and humanely house these foreign terrorist detainees captured on the battlefield.” Reports show that only a handful of current detainees were captured on the battlefield—most were actually captured by foreign militaries or warlords and turned over to U.S. forces for exorbitant bounties.

More importantly, Kirk’s assertion doesn’t jibe with the opinions of countless national security experts and officials who advocate closing the prison. These experts and officials know that Guantanamo not only inspires terrorism and gives terrorists propaganda fodder, it is a costly stain on America’s human rights record and makes counterterrorism cooperation with allies more difficult.

Kirk should listen to the experts and acknowledge the fact that Guantanamo is a danger to U.S. national security. Instead of trying to complicate efforts to close the prison, he should drop his bill and engage productively with the administration’s proposed plan to close Guantanamo.