Tom Cotton makes the case against closing Gitmo

In a speech today at the Heritage Foundation, Senator Tom Cotton presented a powerful argument against closing the Guantanamo Bay terrorist detention facility. He began by pointing out the advantages of keeping the 107 remaining terrorists — the worst of the worst — at Gitmo, as opposed to sending them to prisons in the U.S. or releasing them to foreign countries.

Gitmo, Tom noted, is completely secure. Moreover, its use as a detention center enables us to concentrate American personnel responsible for holding and interrogating captured terrorists in one place. It also prevents terrorists from spreading their radical Islamist ideology to non-terrorist prisoners, as they could if they were moved to existing prisons in the U.S. We can ill-afford to present additional opportunities for anti-American Muslims radicals to indoctrinate our prison population.

Moving Gitmo detainees to supermax prisons in the U.S. would also mean shifting dangerous domestic prisoners to less secure facilities, since supermax prisons are already overcrowded. The alternative, creating new supermax facilities, would be too costly. And any U.S. facility holding terrorists — supermax or not — could become a target for terrorists.

The alternative to transferring detainees to the U.S. is farming them out to other countries. This is what President Obama has done with sickening regularity, consistent with his insistence (until recently) that the threat of terrorism is receding.

Predictably, many of those released from Gitmo have rejoined the jihad. According to Tom, of 653 released detainees, 196 are confirmed or suspected of having returned to the battlefield.

Because the remaining 107 Gitmo detainees are the hardest of the hard core, one would expect their recidivism rate, if anything, to be higher. But even if it’s only the same (30 percent), releasing them would mean 32 new terrorist fighters.

Sen. Cotton next turned to the arguments in favor of closing Gitmo. First, proponents claim that the facility is a terrorist “recruiting tool.” But the claim that Gitmo’s existence is causing people to become terrorists is pure conjecture.

Moreover, it doesn’t hold up against research. Tom noted that there are few references to Gitmo in terrorist recruiting literature, especially that of ISIS. And when Gitmo is mentioned, it’s part of laundry list of grievances, including U.S. support for Israel, the stationing of U.S. troops in Muslim countries, etc.

It’s left-wing fantasy to suppose that jihadists would be thwarted in recruiting if only we closed Gitmo. But even if Gitmo were a meaningful recruiting tool, how would transferring its populations to American prisons take away the essence of the terrorist talking point?

A second common argument against Gitmo is that it shocks the conscience — “it’s not who we are.” In fact, however, Gitmo is a humane, well-run prison facility. Detainees have substantial legal rights, including the right to petition for habeas corpus.

In addition, a large medical staff that roughly matches to total remaining prison population is on hand to serve the prisoners. Prisoners get 12 hours of recreational opportunity every day. The International Red Cross has visited Gitmo 111 times to ensure that detainees are being treated properly.

Moreover, some of America’s best lawyers represent Gitmo’s prison population. According to Tom, there are more lawyers representing the prisoners than there are prisoners. This certainly is not the case with prisons in the U.S.

Sen. Cotton concluded, fairly I think, that military detainees have never had as many rights and privileges as those at Gitmo enjoy. Perhaps more to the point, they have it as good — indeed almost certainly better — than they would have it if moved to a supermax prison in the U.S. Similarly, if imprisoned in another country, it’s doubtful they would have it as good. In any event, we couldn’t guarantee their proper treatment.

Tom also pointed that the Obama administration hasn’t negotiated formal agreements with countries such as Uruguay, to which it has released Gitmo detainees. Thus, we have no control over where they live — in Uruguay, apparently they live close to the U.S. embassy — or what they can do.

Finally, Tom warned that if President Obama transfers Gitmo detainees to the U.S., his action will be in clear violation of the law and will bring about a constitutional crisis. The case would be analyzed under the principles first set forth in Youngstown Steel. Under this familiar analysis, “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.”

Closing Gitmo would be incompatible with the expressed will of Congress over a matter — making “rules concerning captures on land and water” — that the Constitution expressly leaves to Congress. (See Article I, Section 8, Clause 11).

Would Obama go this far? Even given his willingness to take executive action in violation of the law, I doubt it. But who knows?