When President Obama announced last week that he was moving ahead with transferring Guantanamo Bay’s last remaining detainees here, he made it sound as if these terrorists, who include 9/11 conspirators, would never see the light of day, that they would be locked up forever in a super-secure facility, a kind of Gitmo North.
But legal experts say his public-safety guarantees ring hollow. There’s a real chance the worst terrorists on the planet could be freed on American soil.
Once the detainees are transferred from the Cuban prison to the United States, they are automatically entitled to more protections under the Constitution than those detained abroad. These include the right to a lawyer, the right not to incriminate themselves with coerced statements and, most key, the right to petition for a writ of habeas corpus, which orders their release from confinement. They can also request asylum, and if granted, apply for permanent residence here.
As soon as the 30 to 60 monsters Obama hopes to relocate here hit the tarmac, an army of defense lawyers from the ACLU will be waiting for them, ready to exploit those newfound rights on their behalf. And they will file an avalanche of habeas lawsuits to free them from custody.
“There is every reason to believe that if detainees are brought to the United States, litigation will ensue, despite Congress’ latest efforts to” bar them from seeking relief in civilian courts, the Pentagon’s former head of detainee affairs, Charles Stimson, wrote. And, “It is not hard to imagine future legal challenges succeeding.”
Since 9/11, the government has lost every Gitmo detainee-rights case it has fought before the Supreme Court, including a landmark 2008 case that held that alien enemy combatants had a constitutional right to habeas corpus.
Agreed former US prosecutor Andrew McCarthy, who put away the Blind Sheik in the 1993 World Trade Center bombing: “It is very possible that a judge could order the release of a detainee in the US, either after he’s been acquitted at trial or if the court found law-of-war detention was unconstitutional.”
To date, liberal Gitmo defense lawyers have filed more than 200 habeas corpus petitions on behalf of detainees there. A dozen of the remaining detainees have habeas petitions pending.
Congressional legal scholars concluded in a 2013 research paper that Gitmo detainees transferred into the United States would likely win challenges over the admissibility of confessions obtained during interrogation at Gitmo or other military sites. That means evidence tying them to terrorism could be thrown out of court.
“There’s a real chance the worst terrorists on the planet could be freed on American soil.”
If that were the case, these foreign terrorists would avoid not only criminal conviction, but might even dodge deportation from the United States. How? By applying for asylum.
“It is possible that some detainees who have been found not to have fought on behalf of the Taliban or al Qaeda may qualify for asylum or other forms of relief from removal if transferred to the United States,” the Congressional Research Service determined in its report.
“I could easily see an Obama judge issuing a bail order. Or a Clinton or Carter judge,” McCarthy said. “Remember, Obama will have appointed close to 400 judges by the time he leaves.”
Don’t count on the Justice Department aggressively pursuing appeals. At least seven Obama prosecutors shilled for Gitmo terrorists as defense lawyers, including a former associate attorney general. Even a Republican administration would be buried in paper from the Gitmo bar, which numbers more than 400 habeas lawyers from as many as 50 law firms.
The remaining detainees have the highest likelihood of recidivism, greatest chance of escape, and pose the greatest threat to America. Still, the administration insists nearby residents will be safe, noting the terrorists will be housed in facilities with beefed-up security.
The FBI, meanwhile, worries the hardcore Islamic terrorists could radicalize others at prisons.
Obama’s plan would take detainees deemed too dangerous to transfer to other countries — even ones in the Middle East — and bring them right into our back yards, risking the lives and safety of the American people he swore to protect. And he wonders why people are worried.
“A lot of the American public are worried about terrorism, and, in their mind, the notion of having terrorists held in the United States rather than in some distant place can be scary,” Obama said.
As it turns out, they have every right to be afraid.
Paul Sperry is a former Hoover Institution media fellow and author of “Infiltration: How Muslim Spies and Subversives Have Penetrated Washington.”