This article first appeared on The Epoch Times
There have been some startling reports in the past few days regarding recidivism among former Guantanamo Bay detainees. Fox News reports that the Pentagon acknowledges between 20-30 former detainees fighting alongside extremists in Syria and there could be up to as many as 180 formers detainees fighting in total. The report also indicates that 620 detainees have been released from the prison.
As a policy, the Obama administration has not admitted anyone into Guantanamo and the president has been fighting Congress for the last six years to close the prison. Guantanamo Bay has been the subject of harsh criticism from human rights activists and staunch defense from hawks in Congress. Human rights activists believe the prison should be shut down and those inside should either be charged then prosecuted, or released as 78 of the 149 prisoners have already been cleared for release yet face procedural hurdles codified by Congress. Hawks on the other side cite examples highlighted by the Fox News report as a reason to keep individuals detained at Guantanamo to protect US soldiers and continue interrogations to gain additional intelligence from the captured terrorists. To exemplify this major schism among partisans, consider when Attorney General Eric Holder announced his resignation, liberals touted his pursuit to prosecute 9/11 mastermind Khalid Sheikh Mohammed in US federal district court in downtown Manhattan, while conservatives rebuked Holder's attempts as foolish and dangerous.
Yesterday, outgoing House Armed Services Committee Chairman Howard "Buck" McKeon (R-CA) penned a letter to Defense Secretary Chuck Hagel requesting the administration halt the release or transfer of detainees. The detainee transfer notifications to Congress "are particularly troubling given the current threat to the United States from the Islamic State in Iraq and the Levant (ISIL). The re-engagement rate of former Guantanamo detainees is ever-increasing and there are public reports that detainees are specifically rejoining the fight alongside ISIL," the letter read using an alternative name for the Islamic State. Chief among McKeon's concerns is that while US troops are in harm's way dropping bombs and serving in training and advisory roles, releasing detainees that may fight directly against these troops currently would be antithetical to the mission.
The key question that has been on many minds is what will become of the remaining detainees in Guantanamo? Several legal scholars believe that the legal authority to detain individuals in Guantanamo will cease with the conclusion of hostilities in Afghanistan. The Supreme Court has ruled that the 2001 Authorization for Use of Military Force (AUMF), which was first passed to authorize the War in Afghanistan, provides a legal basis to detain terrorists at Guantanamo. However, the US is concluding their combat mission in Afghanistan at the end of 2014 and by 2017, the US presence in Afghanistan will be equal to typical embassy staff.
The administration's transfer of the infamous Taliban Five for Army Sargent Bowe Bergdahl was seen by some as a simple prisoner of war transfer that is typical during any armed conflict. One of the looming unresolved questions regarding the prisoners at
Guantanamo are if the detainees are prisoners of war who upon the
ceasing of hostilities must be returned to their home countries, or if
they should be prosecuted to the fullest extent of the law for violating
domestic and international terrorism laws? Furthermore, are military commissions a satisfactory method to try these individuals, or should they be tried as civilians in federal courts on the US mainland? The ambiguity surrounding the answers to these questions hampers US efforts to combat terrorism because the government cannot get on the same page.
The issue of military commissions versus domestic prosecution is currently being hashed out in a case at the DC circuit. The case of al Bahlul v. United States, examines, among other things, the applicability of a congressional statute regarding crimes to be tried in a military commission court versus a domestic court.
Congress and the Executive Branch, depending on how long this issue is dragged out - meaning it could spill into another administration - must rectify these issues. If, as many hawks in Congress request, the administration stops the transfer of Guantanamo detainees while the US coalition is fighting the Islamic State, which could take years, what will ever happen to the remaining individuals in Guantanamo, most of whom have been there between 2002 and 2008?
As for the short term, it appears the detainees will remain in a sort of legal limbo, but, as a last lingering hypothetical, what happens if US hostilities with the anti-Islamic State coalition escalate to one similar to Afghanistan and Iraq? Will the United States, presumably under a new administration, commit new prisoners to Guantanamo? Or perhaps to another facility similar to the one at Bagram Air Base in Afghanistan (though as a short aside, the United States may decide to keep prisoners at their secret facility in Afghanistan after their forces leave. On the flip side, however, the US recently decided to try a Russian terrorist captured and held in Afghanistan for years on US soil.) This scenario raises a host of additional legal questions that another authorization of force would have to address. Based on the current trajectory though, this scenario may not be that far off base. The future of Guantanamo is still very much up in the air.