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Posted at 12:00 PM ET, 01/ 7/2011

Gitmo documents demanded

By Jennifer Rubin

House Judiciary Chairman Lamar Smith (R-Texas) is not the only lawmaker demanding information from the Justice Department. Yesterday, Eli Lake reported:

Senate Republicans are pressing the Obama administration for documents that outline procedures used in releasing terrorism-suspect detainees from the prison at Guantanamo Bay, Cuba, information the Justice Department and State Department have previously withheld.

In an effort by the GOP to provide greater oversight of the administration's war on terrorism, seven members of the Senate Select Committee on Intelligence, including the presumed next vice chairman, Sen. Saxby Chambliss, Georgia Republican, last month signed letters seeking the documents. . . .

A recent Defense Intelligence Agency study on the recidivism rate of detainees found that 150 of those released from the Guantanamo Bay prison are confirmed or suspected to have returned to terrorism. President George W. Bush released more than 500 suspected terrorists from the prison.

It is a measure of just how lax Congressional oversight has been that this information has not been previously obtained.

Debra Burlingame, the co-founder of Keep America Safe and the sister of a pilot killed on Sept. 11, had this reaction last night:

What the Senate is asking for is not just partisan grand-standing. The high recidivism rate, and the rising speed with which detainees return to the battlefield, is a dirty little secret that will shock and anger the American people. There have been no "innocent goat herders" at Gitmo for years, and if the Obama administration didn't know that when they set about to shut Guantanamo down, they certainly know it now. There is now strong bi-partisan support to keep Gitmo operational, and this recidivism data should be the nail in the coffin for Obama's ill-considered detainee policy.

It is also a further sign that we are moving toward a bipartisan approach to the war on Islamic terrorism, one that places Americans' safety first and gives comparatively little weight to the views of European elites and liberal sensibilities at home. And we should keep in mind that release of Guantanamo detainees who returned to the battlefield is not merely an Obama administration problem. If Democrats needed any further incentive to get to the bottom of this, they can console themselves with the knowledge that there is plenty of blame to go around.

By Jennifer Rubin  | January 7, 2011; 12:00 PM ET
 
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Comments

This is interesting. I imagine that the left will complain loudly that Bush let people go who returned to the battlefield against us so therefore the Republicans have no business investigating GITMO.

The world wide left's hue and cry about the thugs at GITMO resulted in some pretty foolish choices. The recidivism rate is a clear example. Detainees should hunker down, they ain't going anywhere any time soon.

Is this indefinite detention? Well no. Once we prevail against the forces of evil being spawned by Islam we can begin to think about letting those guys go.

Posted by: skipsailing28 | January 7, 2011 1:47 PM | Report abuse

Here's just another examply of GOP overreach backfiring. Anything they produce will undobutedly reflect worse on the Bush admnistration than the Obama one.

"There is now strong bi-partisan support to keep Gitmo operational, and this recidivism data should be the nail in the coffin for Obama's ill-considered detainee policy."


What an idiot Debra Burlingame must be, since as even you noted, Bush has released far more people than Obama and the policy being followed is the Bush policy, not the Obama policy.

Posted by: 54465446 | January 7, 2011 1:58 PM | Report abuse

skip:

So much for reading the Constitution, even the abridged version, at the start of the GOP ascendancy, eh?

Wanna try to follow the new GOP policy of quoting the enabling portion of the Constitution in new legislation for GITMO?

Perhaps Jennifer came help, since she's an attorney. Please write a post for us citing any constitutional authority for GITMO.

Let me save you your next post, skip. The Bush administration and John Yoo have argued strenuously in all levels of court that they are NOT POWS! A little late to go back now and say they are.

Posted by: 54465446 | January 7, 2011 2:04 PM | Report abuse

"Once we prevail against the forces of evil being spawned by Islam"

Cartoon/Graphic Novel fantasy,will Superman save us from the Muslim hordes?

After we prevail against Islam,it's time for Satan at the OK corral.

Posted by: rcaruth | January 7, 2011 2:10 PM | Report abuse

Recidivism implies they have first been convicted of a crime; so absent that data the term is useless.

It is quite likely that some were radicalized by their time at Gitmo rather than prior to capture.

Given the recidivism rate of US prisoners is about 50%, even if all were guilty prior to being taken to Gitmo, the 30%"recidivism" rate doesn't fair so badly

Posted by: jrav13 | January 7, 2011 2:14 PM | Report abuse

The Constitution seems to be silent on what to do with captured terrorists, who will very likely go onto to help organize and commit more acts of violence if released. All we can do, then, is reason through the alternatives, and try to find the one that best conforms to the President's duty to protect the country and its citizens with the international norms of treating prisoners we have affirmed. We can't put them on trial in criminal court, because they were captured outside of those norms, and the evidence against them would be too often inadmissable or insufficient. We can't release them without adding more combatants to our enemies. We could try military tribunals, but the Supreme Court refused to allow that, and the President and Congress didn't have the courage to ignore the court in this instance. Anyway, tribunals pose problems as well--it's not clear that they have all committed crimes--if, for example, they were involved in recruitment, then they are simply enemies rather than criminals. And they're not POWs, because they are not members of an armed force subject to a state that has signed the Geneva Conventions. The best alternative, then, is simply to hold them as long as they seem to pose a danger, because they are likely to return to their former activities and those activities are still available to join. Meanwhile, they should be provided due process in the minimal sense that they should have some means for challenging the basic factual case against them, within a forum that can look at the conditions of their capture without exposing our means of obtaining information.

Posted by: adam62 | January 7, 2011 3:15 PM | Report abuse

adam62:

Enjoyed your thoughful analysis. However I disagree with this point:

"The Constitution seems to be silent on what to do with captured terrorists, who will very likely go onto to help organize and commit more acts of violence if released."

If you are stupid enough to set up a prison on US territory, the Constitution is very clear what needs to go on there. After all the the exact same definition could have applied to Timothy McVeigh.

That is not to say I want the GITMO people to be treated like citizens, but more to show how appalingly bad was the legal team that was advising George Bush.

Has they simply kept the prisoners in the war zone for whatever time necessary to interrogate them, they could have disposed of them in pretty much any manner deemed appropriate without public outcry.

Posted by: 54465446 | January 7, 2011 3:31 PM | Report abuse

"Has they simply kept the prisoners in the war zone for whatever time necessary to interrogate them, they could have disposed of them in pretty much any manner deemed appropriate without public outcry."

If this is true, it just shows how contrived the "public outcry" was--it wasn't, then, about human rights abuses, or about legal "black holes"--it was just an available stick with which to beat America and the Bush Administration. But the problem with keeping them on foreign soil is, what if the government of that country objects?

Posted by: adam62 | January 7, 2011 3:43 PM | Report abuse

which part of the constitution does holding the thugs at gitmo violate Mr Numbers person?

Posted by: skipsailing28 | January 7, 2011 4:04 PM | Report abuse

It's not contrived for the public to be concerned about a twilight prison on American soil with prisoners who have no sentence and no court supposedly has jurisdiction. Had McVeigh acted AFTER GITMO, I think there is argument to be made that he would have been taken there, to keep him outside regular jurisprudence until they decided what to do with him. It's just an extremely bad legal precedent.

However most Americans understand that people captured overseas in war zones are not good subjects for American trial, as you so ably pointed out.

I think in most cases, the prisoners were captured where there is no effective government such as Iraq or Afghanistan, or with the acceptance of the local government like Pakistan.

Good civilized discussion btw.

Posted by: 54465446 | January 7, 2011 4:07 PM | Report abuse

Yes, the precedent is a problem, which is why the enemy needs to be defined more precisely--there are always limits to such precision, though. It would help if people limited their outrage to unacceptable brutalities, while pointing more civilly to problematic precedents.

"I think in most cases, the prisoners were captured where there is no effective government such as Iraq or Afghanistan, or with the acceptance of the local government like Pakistan."

Eventually, the government becomes effective, and must distance itself from its American "masters"; or acceptance makes the government a target for extremists (and the human rights left) and is therefore converted to rejection. In which case the question of "where" once again emerges.

Posted by: adam62 | January 7, 2011 4:25 PM | Report abuse

this is no twilight prison. It is by the far most visited prison in the world. Americans know why it exists and we understand the nature of the thugs being held there.

I do not agree with the contention that these people cannot be held as POW's because they aren't "uniformed". Again, what body of law, with standing in America makes that distinction pivotal?

Further "indefinite detention" is exactly what enemy combatants in any war face. No one knows how long a war will last so no one can set a definite term on how long prisoners will be held.

However I do agree with the notion that the "outrage" about GITMO was both contrived and foolish. Look at the corner our Dear Leader has been painted into.

Posted by: skipsailing28 | January 7, 2011 4:27 PM | Report abuse

this, btw, is a perfect example of the what I predicted:
===============
Here's just another examply of GOP overreach backfiring. Anything they produce will undobutedly reflect worse on the Bush admnistration than the Obama one.
=================
Note that my comment predicting the numbers person's position was posted 11 minutes (did I get the arithmetic right?) before the above was posted. I know my liberals and their reactions to certain stimuli are very reminiscent of pavlov's dogs.

Posted by: skipsailing28 | January 7, 2011 4:30 PM | Report abuse

"I do not agree with the contention that these people cannot be held as POW's because they aren't "uniformed". Again, what body of law, with standing in America makes that distinction pivotal?"

What I meant here is not that they can't be held, of course, but that they are not POWs, a term which I believe implies they are subject to the Geneva Conventions--which don't apply in this case, for reasons I have given. Otherwise, I think we agree.

Posted by: adam62 | January 7, 2011 5:07 PM | Report abuse

And that is exactly the wedge that the anti victory harpies used during the Bush Years. If these people aren't POW's then America cannot hold them indefinitely and must develop some method for "ajudicating" the status of these ne'er do wells. Or so the complaints went.

but fortune has a way of making fools of us all. And here the liberal dogma came up against a brutal reality. The folks at GITMO need to be there. And protestations about their rights and our standing in the world are minor concerns when set against their potential to harm American citizens.

and I love the voice of doom and gloom aka rcaruth. It seems pretty clear that we will either prevail against our enemies or lose to them and suffer the consequences. rcaruth seems fine with losing. That's hardly surprising given the tone and tenor of prior posts.

No, recidivism doesn't imply prior ajudication, at least not as I understand the word. The simple fact is some of the men incarcerated at GITMO were released only to return to their prior evil ways. This was a mistake and it should be an object lesson for the anti victory folks.

Often a leader is faced with no really good choices and must make the best of what options are available. Bush himself stated that he'd like to close GITMO, but couldn't. Obama spouted vacuous rhetoric and now has enough egg on his face to make a darned nice souffle.

In the meantime his acolytes mince words and studiously avoid any intimations that Bush was right. For proof reread the comment of jrav13. It is an excellent example.

Posted by: skipsailing28 | January 7, 2011 5:16 PM | Report abuse

" If these people aren't POW's then America cannot hold them indefinitely and must develop some method for "ajudicating" the status of these ne'er do wells. Or so the complaints went."

As you say, it doesn't follow--only the complaints went. POW is not necessarily the only way of categorizing prisoners. I thought "unlawful combatant" was fine. Legal concepts don't always fit reality, and new ones need to be framed.

Posted by: adam62 | January 7, 2011 6:04 PM | Report abuse

skip wrote:

"I do not agree with the contention that these people cannot be held as POW's because they aren't "uniformed". Again, what body of law, with standing in America makes that distinction pivotal?"

The people who incarcerated them have argued in every court and every case that they are not POW's, regardless of uniform.

The Bush administration tried to argue specifically that there is no body of law that applies, hence the coinage of a brand new term "enemy combatants" that had no previous legal meaning. Obviously in both denying them POW status, and in moving them to GITMO, the charlatans in the Bush Justice Department like John Yoo were attempting to create something entirely unique in American legal history outside of any court jurisdiction anywhere.

You don't think they put it in GITMO because of the climate did you?

Posted by: 54465446 | January 7, 2011 7:19 PM | Report abuse

skip wrote:

"Note that my comment predicting the numbers person's position was posted 11 minutes (did I get the arithmetic right?) before the above was posted. I know my liberals and their reactions to certain stimuli are very reminiscent of pavlov's dogs:

The problem is that all you bring to the table is opinion never supported by facts.

That is why you would feel comfortable in believeing that an extra-legal prison set up and manned during the Bush adminstration, the legal theory of which was created by Bush administration attorneys, and all of whose inmates were chosen during the Bush administration and most of whose released "recidivist" prisoners were Bush administration decisions could somehow be blamed solely on Obama.

Posted by: 54465446 | January 7, 2011 7:29 PM | Report abuse

"Obviously in both denying them POW status, and in moving them to GITMO, the charlatans in the Bush Justice Department like John Yoo were attempting to create something entirely unique in American legal history outside of any court jurisdiction anywhere."

To show they were charlatans, you would have to explain and take on the theory. Otherwise, all you are saying is that they created a new legal theory for a new legal regime to match an unprecedented situation, just as every unprecedented situation requires a new legal frame. All you are saying is that--and that you don't like it, for undisclosed reasons. What body of law covered combatants who deny all distinction between civilian and military targets, who are controlled by no regime, for whom no regime claims responsibility, and who are signatories to no treaties? There were the additions to Geneva in 1977 (I think), but the US, for very good reasons, never signed onto those protocols granting legal recognition to guerilla (who are not necessarily terrorist) fighters.

Posted by: adam62 | January 7, 2011 8:53 PM | Report abuse

adam62:

The excutive branch can't create, as you and I would hopefully agree, a body of law by fiat. As I wrote above, I would never argue that the President had whatever war-making powers necessary to deal with these men as captives in the war zones. I have stated before that execution for those who are guilty of murder or attempting to murder Americans would have been a perfectly acceptable solution.

I know of no prior ruling of the SCOTUS, any legislation passed by Congress, nor any section of the Constitution that can legally countenance infinite detention of individuals on American soil without trials or sentences, until their death. Perhaps the deficiency is mine and if so I would be happy to hear the opposing legal argument.

In my legal view, the Bush team chose to thumb their nose at the Constitution by bringing these men to American soil and daring any court as it were to disagree with them. If you have read any of John Yoo's stuff, it presents a president who is almost omnipotent in his powers while at war, not only in theaters of war, but at home too. That is a view not shared by most of the American people I believe. If you simply read most conservatives the opinions of the Bush Justice Department team on this, while exorcising any identification, I believe that many if not most would be outraged over the ideas expressed as another "power grab" by the government.

Though we disagree on much, you seem a reasonable man to me. Do you REALLY believe that we can keep a prison going for these men, many of whom were in their twenties when captured, until they die of old age?

Even when dealing with the the greatest military victory of our nation's history, and even when in possession of some of the most ruthless killers of the 20th Century, we still thought that our principles as an nation demanded that we place both German and Japanese figures in some form of public accusatory forum, to receive some definitive sentence. This, though no one would have murmured at all if they had simply been shot.

Why at GITMO do we insist upon subverting those principles for such a group of men as these?

Posted by: 54465446 | January 7, 2011 9:56 PM | Report abuse

adam62:

BTW, I appreciate the fact that you have been unfailing polite and are keeping this in the arena of the factual. Were this another forum we could get into actual case law, but I think the limit on characters would defeat any law review type approach. Thanks for your responses.

Posted by: 54465446 | January 7, 2011 10:06 PM | Report abuse

I'm not up to law review references anyway--I just argue from what seems to me a commonsensical approach. My own preference would be military tribunals, but the Supreme Court threw the equivalent of a hissy fit over that, even though Congress passed the enabling legislation--in the end, I don't think Congress (I know, the Republican Congress--not that I would expect better from the Democrats) wanted the responsibility for crafting a new legal regime (if it did, it could have, as it is constitutionally able to, placed this law beyond the jurisdiction of the Court). Faced with the alternative of simply letting the captives go, the Bush Administration pieced together a provisional regime, and one which seems to me reasonable, and one that could be worked on further if we approached it in good faith. No one knows how long the war, if that is what it is, will go on, but if it keeps dragging on we will obviously need a more permanent legal regime. But the truth is that the Bush Administration was the only agency involved that really stuck its neck out and took some responsibility for inevitably contestable decisions--and, not for the first time in history, that's what made them an easy target for everyone else, who had nothing better to offer. What do you have to offer?

Posted by: adam62 | January 7, 2011 10:36 PM | Report abuse

For me the answer is obvious...firing squad.
That settles the liberal problem but what to do with the Gitmo prisoners.

Posted by: lowranger1 | January 9, 2011 6:33 PM | Report abuse

For me the answer is obvious...firing squad.
That settles the liberal problem but what to do with the Gitmo prisoners.

Posted by: lowranger1 | January 9, 2011 6:34 PM | Report abuse

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