Ordered Liberty

As War Heats Up, Obama Dismantles War Approach to Counterterrorism

Last week, while Republicans popped open the champagne over the electorate’s emphatic rejection of the Obama left’s policies, Mr. Obama significantly advanced one he’s been pushing – against public opinion and with haltingly incremental success – since the first hours of his presidency. Lost amid Shellacking 2.0 – and between the sudden dump of over 60,000 previously withheld Fast & Furious documents and the president’s reaffirmation of his executive illegal-alien amnesty vow – was the administration’s further dismantling of the post-9/11 counterterrorism paradigm.

With nearly no one noticing, the administration transferred a long-held terrorist detainee out of Guantanamo Bay. Fawzi al-Odah was returned to his native Kuwait, another Gulf halfway house between Gitmo and return to the jihad. He had been detained under the laws of war for over a dozen years because he was assessed as posing a continuing danger. Naturally, his release was instantly heralded by an al Qaeda leader in Syria – indeed, by a top figure in what the administration refers to as the Khorasan group, the al Qaeda component plotting attacks against the U.S. and the West. And astoundingly, it appears that al Qaeda knew Odah’s release was coming before the American people were informed.

Odah’s transfer comes just as the president, forced to confront the increased jihadist threat from al Qaeda and ISIS, has escalated the number of American troops (as “advisers” only, of course) and continues conducting an aerial bombing campaign. It fulfills a prediction made this past summer by former Attorney General Michael Mukasey and other commentators (including your humble correspondent): The release in July of five Taliban commanders in exchange for the deserter Bowe Bergdahl was intended to help Obama achieve the vow to close Guantanamo Bay, made on his first day in office. (Actually, Obama promised to close Gitmo within a year. He is five years behind schedule because Americans hate the idea, igniting strong congressional opposition.)

The laws of war, the foundation of Bush-Cheney post-9/11 counterterrorism, provide for detention without trial of enemy combatants until the conclusion of hostilities. Hostilities are not close to being over – as Obama quite obviously recognizes since our forces continue to conduct lethal attacks. We know, moreover, that a very high percentage of former detainees return to the jihad. The CIA has conceded that it could be 20 percent, but the truth is it’s no doubt higher – our intelligence community has no idea who goes back to the jihad unless they encounter the terrorist on the battlefield or are in the unusual position of having good intelligence about about what he’s up to. We do know that former Gitmo detainees regularly resurface as al Qaeda leaders in places like in Yemen, Iraq and Libya.

Yet, by releasing the Taliban commanders – the “worst of the worst” … and at a time when the Taliban was (just as it is) still conducting terrorist operations against our troops – Obama established a very high ceiling. By acceding to the release of high-ranking Taliban operatives despite the heightening threat, the administration makes it far more difficult to rationalize the continued detention without trial of virtually any other Gitmo detainee. By comparison, the Taliban commanders were bound to be worse.

Bear in mind, moreover, that the Obama administration is threaded with lawyers who used to represent terrorist detainees (voluntarily … for free!). These lawyers well know that many of the detainees are still bringing the same kinds of lawsuits these lawyers used to help them bring: challenges to their detention without trial. By springing the most dangerous terrorists, the administration plainly strengthens the litigation position of lesser players still held at Gitmo. While courts are reluctant to issue outright release orders – there being debate about the extent of their authority to do so – they certainly can and do ratchet up pressure on the government to get the terrorists out of Gitmo (i.e., to find countries willing to take them and effect transfer). Indeed, in al-Odah’s own case, while declining to invalidate the terrorist’s law-of-war detention, a federal judge in Virginia admonished that the time was coming that the executive branch would be obliged to release the detainees. Less than three months later, al-Odah was sent home.

Expect a quickening of the pace. Obama is patently pushing to reduce the number of detainees at Gitmo, now estimated at 148, to one low enough to justify, at least in his own mind, transferring the remainder into the United States. Gitmo would then be shuttered.

Knowing how ballistic this would make voters, congressional Republicans have succeeded in enacting laws that prohibit the executive branch from moving the detainees into U.S. prisons. But our imperious president is notorious for riding roughshod over federal laws not to his liking. He has never been stopped by mere law; he has been brushed back only by concern about political damage that might hurt him and Democrats in elections.

Except… now he doesn’t have anymore elections to worry about. All that is left for the next two years-plus is the imperative to implement as much of his agenda as his enormous raw power allows.