Last week, an official from al-Qaeda in the Arabian Peninsula (AQAP) publicly confirmed the death of Said al-Shehri, the group’s deputy commander. The announcement claimed that al-Shehri, a former detainee held by the United States at Guantanamo Bay until his repatriation to Saudi Arabia in 2007, was killed in an American drone strike.
Al-Shehri reportedly spearheaded multiple plots aimed at Western targets since his handover to Saudi Arabia, particularly against the United Kingdom. And as deputy commander of AQAP, it’s a safe bet that he was heavily involved in planning for AQAP plots targeting the United States, including the failed 2009 Christmas Day airline bomb and 2010 attempt to bomb U.S.-bound cargo planes.
Quite obviously, Al-Shehri was a bad guy and a threat to American national security. So it is unsurprising that he found himself on the wrong end of a Hellfire missile strike. But his return to jihadist militancy after his transfer from Guantanamo Bay also makes him a perfect example of why the U.S. government has been unable — and will remain unable — to close the controversial detention facility there.
Any case of recidivism, given the potential national security implications, is unacceptable to the American public. This marks a significant distinction between terrorism cases and those of inmates incarcerated in the United States for virtually any other offense. For the latter group, there is an expectation that at least some released prisoners will become repeat offenders (of course, measures are taken to reduce this number, but it is generally perceived as an unavoidable result of a fair and just legal system). With respect to terrorism, however, U.S. policy draws the line at zero. Any single repeat attack is, as a matter of policy, one too many.
In her memoir covering her years of service during the Bush administration, Condoleezza Rice described how the sense that after 9/11 the U.S. government could not allow any further attacks was central to the paradigm through which all issues were examined. “Every day since has been September 12,” she wrote. “No security issue ever looked quite the same again, and every day our overwhelming preoccupation was to avoid another attack.” Twelve years on, American policy remains deeply influenced by that mindset, which explains the continued existence of the Guantanamo Bay facility, despite myriad arguments in favor of its closure.
Hence, despite calls for greater leveraging of law enforcement resources as the most appropriate means of countering the threat of terrorism, official U.S. policy continues to lean heavily on the military. This should come as no surprise. Law enforcement solutions must be pursued within a system that prioritizes individual rights and balances principles of liberty and justice with the need to provide safety and security. That system occasionally lets the guilty go free and leads to repeat offenders among those released from prisons, but we tolerate this inevitability because we hold those principles as too sacred to compromise. But with respect to terrorism cases, security is prioritized over principle. If the prospect of a single terrorist attack is intolerable, then this law enforcement approach is insufficient to meet American security requirements and military solutions that afford significantly more powerful tools across the spectrum — from drone strikes to detention in military-run facilities — are naturally more attractive. Is this hypocritical? Certainly, but hypocrisy is a permanent feature of an international political system in which states inherently and rationally prioritize their security and that of their people.
One argument made by critics of Guantanamo Bay, of course, is that this militarized detention program eliminates the due process that is fundamental to the U.S. legal system. Without a trial, critics say, we can’t formally determine whether detainees are truly the bad guys they’re believed to be. But whether or not they committed offenses sufficient to justify their detention — the determination of which is the core function of due process requirements — is immaterial. National security implications remain the sole concern. This is the uncomfortable truth: Detainees remain held at Guantanamo Bay not because of what they did or didn’t do before their detention, but because of what they might do after their release or transfer. As such, arguments about the failure to apply due process are both technically correct and largely irrelevant.
Opponents of closing the site argue that the detainees pose a threat to U.S. security, a point bolstered by cases of recidivism such as that of al-Shehri and the other 168 former detainees that are either known or suspected to have reengaged in militancy. On the other hand, supporters of plans to close the detention center argue that Gitmo itself has radicalized those within its confines. Both sides are correct. The remaining 166 detainees are clearly believed to pose a threat: 44 have been declared as too dangerous to release and too difficult to prosecute, but even those without this formal label certainly represent similar challenges. And the threat is sure to be exacerbated by the radicalizing effects of the detainees’ long-term detention.
So given that the Guantanamo Bay’s future is explicitly defined as a national security issue, in which preventing against future attacks is the dominant concern, the facility remains in operation simply because there is no suitable alternative. Repatriation to detainees’ countries of origin carries the risk that governments of these countries will be unable to keep individuals from reengaging with militant networks (congressional pressure has also limited the ability of the president to pursue this course). Third-party countries have accepted some detainees, but reaching such an agreement for the most troubling cases that remain appears increasingly difficult. Continued detention at prison facilities within the United States has been suggested, but this would likely lead to overwhelming pressure to ultimately bring detainees to trial in civilian courts. And such civilian trials are themselves not an option, since myriad evidentiary issues reduce the likelihood of conviction in many cases to an unacceptably low level.
The difficulty of releasing detainees is largely evidenced by the fact that the rate of release of detainees has slowed considerably over the past few years. According to data from the Office of the Director of National Intelligence, 532 detainees were released or transferred prior to 22 January 2009 (when Executive Order 13492 was signed, mandating the review of the disposition of all remaining detainees). Only 71 have been released or transferred in the four and a half years since that date. This deceleration reflects that fact that each detainee case is more troublesome than the last. The 166 detainees still held pose the largest challenges.
And so, Guantanamo Bay’s detention facilities remain open. This is purely a matter of pragmatism. There is simply no alternative that adequately protects U.S. security interests.
Eventually, of course, the detention center will be closed, but it will not be soon, and it will not be because a comprehensive solution to the dilemma of closure suddenly emerges after eluding U.S. policymakers for years. More likely, it will be a gradual and piecemeal process. Officials will continue to make decisions about the future of both individual detainees and the facility itself that are primarily based on the potential impact to national security. For the foreseeable future, the majority of Americans will continue to expect their government to prioritize this factor, elected officials will oblige, and Guantanamo Bay will remain open.
John Amble is the Managing Editor of War on the Rocks.
Photo Credit: Steve Rhodes