Republicans have a political opportunity to promote legislation that would establish Guantanamo Bay prison as the default detention facility for jihadis following the White House’s controversial decision to transfer a Somali jihadi from U.S. military custody to a civil court in the United States.
“It’s astonishing that this Administration is determined to give foreign fighters all the rights and privileges of U.S. citizens regardless of where they are captured,” Senate Republican leader Mitch McConnell said Wednesday. “Ahmed Abdulkadir Warsame is a foreign enemy combatant. He should be treated as one; he should be sitting in a cell [at] Guantanamo Bay, and eventually be tried before a military commission. Warsame is an admitted terrorist.”
Warsame’s civil prosecution “suggests — incorrectly — that the full spectrum of Constitutional rights and the evidentirary rules of U.S. courts should apply to foreign terrorists captured abroad,” said Rep. Mike Rogers, the Republican chairman of the House Permanent Select Committee on Intelligence. “The Obama Administration needs to accept that it makes no sense to close Guantanamo Bay, and for the sake of our national security allow new detainees to be transferred there.”
Federal officials announced Tuesday that they had brought to the U.S. Wasame, an Islamic weapons smuggler who was captured at sea on April 19 by the U.S. Navy. Wasame was seized, held on board a naval ship and interrogated for two months in accordance with established military rules.
But he was then read his Miranda rights, questioned by the FBI and given a lawyer before arriving in the U.S. where he will face a civil court.
Republicans in the Senate and House have drafted bills intended to keep jihadis out of U.S. courts, and in the Guantanamo Bay military prison. The bills are sponsored by New Hampshire Sen. Kelly Ayotte, and California Republican Rep. Buck McKeon, chairman of the House Armed Services Committee.
Republicans are supported by public opinion. In January the Obama administration ended its plans to close the Guantanamo Bay prison, and dropped plans to try four senior members of Al Qaeda in New York civil courts for their rolls in planning 9/11.
A March 2010 CNN poll found that only 39 percent of Americans thought that Guantanamo should be closed. (GOP senators bash Holder’s decision to give civilian trial to Somali terrorist)
On Wednesday, at least 37 of 46 GOP senators signed a letter to Attorney General Eric Holder denouncing the Wasame transfer.
Holder has argued that civil-law is the foundation of national defense and the focus on civil-law has become a central feature of the new anti-terrorism strategy adopted by the administration last last month.
Holder also has the support of President Brack Obama, who recently approved a new anti-terrorism strategy that gives the most prominent role to the civil-courts.
On Wednesday, Democrats supported the administration’s decision to bring Wasame and other jihadis to U.S. for trail in the civil court system. (Holder wins two, loses one)
“To argue that we cannot successfully convict a terrorists in the U.S. is to ignore reality,” Illinois Sen. Dick Durbin, declared July 6. Some 400 terrorists have already been convicted in civil courts, he said.
Nearly all of the 400 convicted people were found guilty of offenses within the United States where evidence and witnesses can be assembled. Many also were convicted of straightforward offenses, such as immigration fraud.
However, ACLU lawyers opposed the administration’s treatment of Wasame because it did not immediately extend civil law protections to jihadis. Keeping Wasame on board the ship for military interrogation “was unnecessary, unwise and unlawful,” and also jeopardized the civil case against Warsame, said Hina Shamsi, director of the ACLU’s National Security Project.
The administration’s reluctance to treat jihadis under the rules of war, rather than civil law, has set sharp limits on the military’s ability to deal with jihadis outside the Iraq and Afghanistan battlefields. Jihadis captured in those areas “are easier to deal with,” Admiral William McRaven, head of the Pentagon’s special force command, during a June 29 hearing of the Senate Armed Services Committee. People captured outside those zones, he said, can be delivered to a country or prosecuted under civil law, he said. But, he said, “if we can’t do either one of those, then we’ll release that individual.”
Ayotte asked McRaven if his task would be aided by “a long-term detention and interrogation facility that would be secure for individuals where we need to gather further intelligence?” Such a facility, said McRaven, “would be very helpful.”
There’s no consensus facility or interrogation policy because the White House does not want to use Guantanamo, and Republicans don’t want to use the civil courts, said Robert Chesney, an lawyer at the University of Texas School of Law. If the administration walked away from use of civil law, and stepped up use of Guantanamo, progressive legal groups would “howl” at the administration, he said.