An Unserious Response to a Serious Concern

October 20, 2011

By Heather Hurlburt & James Lamond 

October 20, 2011 | The Hill

When it comes to dealing with terrorism, synching the law, morality and effectiveness of how we deal with terrorists – and how we show ourselves to the world – is vitally important.  Senators McCain, Ayotte, Graham, McConnell and Chambliss took to the Senate floor this week to “talk about the importance of the defense authorization bill.” The Senators focused on controversial provisions on detention and trial of terror suspects buried within this key piece of defense legislation. However, the Senators are playing loose with both the facts and history involved, and this leads to conclusions that are cynical at best, and harmful to our security at worst.

First a little background: The National Defense Authorization Act (NDAA), which authorizes all defense spending for the fiscal year, contains several provisions related to detention policy that mark a drastic deviation from the norm: Section 1031 authorizes of indefinite detention; Section 1032 requires military custody of terrorism suspects; and 1033 has stringent restrictions on the transfer of detainees.

The five Senators took to the floor to raise three questions that they say their provisions are necessary to answer, but facts and recent history say otherwise:

First, there is the discredited idea that we have no capacity to deal with captured terrorists without Guantanamo, indefinite detention and militarized detention and justice. Senator Chambliss expressed concern about what would have happened if we had captured Osama bin Laden with similar concerns about Anwar al Awlaki. Yet this month has already seen one heartening demonstration of what our civilian justice system could have had in store for Awlaki; the same fate as Umar Farouk Abdulmutallab, the “Underwear Bomber,” who last week pled guilty and likely faces life in prison.

Likewise, Najibullah Zazi faces a life sentence for his role in the plot to attack the New York City subway, which has been described as “one of the most serious terrorist threats” since 9/11; Ahmed Khalfan Ghailani was sentenced to life in January, for his role in the 1998 East Africa Embassy Bombings; and Zacarias Moussaoui is serving a life sentence after being found guilty for a role in the 9/11 attacks.  If these names have lost familiarity, it is because the civilian justice system –and the partnerships among the police, FBI and intelligence agencies—worked to deprive terrorists of notoriety and the oxygen of publicity, surely the fate we would have wished for Awlaki.  Why do these Senators want otherwise?

Second, there is the suggestion that indefinite detention and Guantanamo Bay prison are necessary because “recidivism rates are too high.” The implication here of course is that by sending Guantanamo detainees to other countries, we are releasing terrorists, who will then return to the fight against the United States. Yet the 27 percent recidivism rate the Senators cited has been widely questioned.

An independent analysis from Peter Bergen and Katherine Tiedemann of the New America Foundation found the actual number of recidivists to be a fraction of the number claimed by Senator Chambliss. By the government’s own definition, one can be counted as a recidivist based off unconfirmed speculative reports. Of course, this is not to say that there is either an acceptable or unacceptable amount of recidivism, but if we are citing statistics that influence our thinking on importance issues, we should know where those numbers are coming from.

The more important point is that keeping Guantanamo open is not cost-free. The damage done to America’s image and the support to our enemies is vast. This is why respected figures including General Colin Powell, General David Petraeus, William Sessions and John Brennan have repeatedly said we should close the prison down.

It is also worth noting that provisions for which detainees are released and how they are scrutinized have been tightened dramatically since 2009, and that poor record-keeping and lax release policies – ironically by the very people who claimed indefinite detention was necessary –led to some of the more serious recidivism incidents.

Finally, McCain, Ayotte, and their colleagues stressed the importance of passing the NDAA. Senator McCain emphasized that Congress has enacted the bill “for 50 years, five zero,” and that refusing to move the bill is “a betrayal of the men and women who are serving this nation.” This is a sharply different tone than the Senator took last year, when he filibustered the bill not once, but twice, because of the provision in the legislation repealing “Don’t Ask, Don’t Tell.”

These arguments are weak. But the policies are even weaker. Important legal, practical and moral challenges persist in organizing our response to terror threats. But arguments such as the colloquy the Senators mounted are an unserious response to serious challenges and only serve to undermine America’s interests.

Heather Hurlburt is the Executive Director of the National Security Network, and James Lamond is the Research Director at the National Security Network.

For original piece, click here.

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