HATCH: Obama changes unfold gradually

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By Orrin G. Hatch

ANALYSIS/OPINION:

The Obama administration's position on the Guantanamo Bay Detention Facility and its detainees continues to be unveiled in a series of choreographed statements.

In a recent filing with the U.S. District Court for the District of Columbia, the Obama administration dropped the “enemy combatant” term from detainees at Guantanamo. The Department of Justice said only individuals who provided substantial support to al Qaeda or the Taliban are detainable.

Applying this new department standard will not change the facts. Out of the 245 remaining detainees, the 100 most dangerous easily meet the definition of having provided substantial support to al Qaeda.

Despite dropping the term, the administration still will base its authority to hold detainees on the Authorization for Use of Military Force. This authority was given to George W. Bush's administration by Congress and upheld by the U.S. Supreme Court in Hamdi v. Rumsfeld.

To date, about 60 detainees who were released returned to hostilities against the United States. Two former detainees are known to hold key al Qaeda leadership positions in Yemen and Afghanistan.

President Obama's executive orders closing Guantanamo established a deadline but lacked a plan to get there. Ordering closure before he even had an attorney general to evaluate the legal challenges and obstacles to detainee cases probably was not very prudent. The president's orders also commissioned a task force on detainee disposition. It strikes me that the study should come before the decision to close, not accompany it.

Closing the only Defense Department Strategic Interrogation facility we have - a facility with a well-trained security force, secure infrastructure and humane conditions - will leave us no options outside U.S. soil.

Some of my colleagues in the Senate's Democratic majority favor remanding the detainees to the custody of the Bureau of Prisons. Officials there have said they consider these prisoners high security risks. As such, the prisoners would need to be housed in a federal maximum-security prison, and the bureau says it does not have enough such space for them.

However, my colleagues insist that the bureau's Federal Supermax Prison in Colorado is a viable alternative to Guantanamo. The capacity of this facility is 490 beds; the current population is 471. The bureau tries to ensure that this facility is never at full capacity in case of a need for emergency transfers.

As an alternative to the Supermax, another idea is to sprinkle the detainees throughout the federal prison system. The bureau has 15 high-security prisons nationwide built to accommodate 13,448 prisoners. These prisons currently hold 20,291, more than 7,000 prisoners over capacity.

Another alternative to Guantanamo offered by Democrats is to transfer detainees to another military installation on U.S. soil. One of the facilities identified is Fort Leavenworth in Kansas. My esteemed colleague Sen. Sam Brownback of Kansas already has pointed out that this idea would have dire consequences for the Army's Command and General Staff College. This is a course run by the Army and open to foreign officers from Islamic nations. The governments of these nations have publicly declared they will withdraw their personnel from the course if enemy combatants are transferred to Fort Leavenworth.

In February, Defense Secretary Robert M. Gates submitted a report to the White House on the present conditions at Guantanamo, which concluded that the detention facility and the treatment of detainees at Guantanamo are in compliance with Article III of the Geneva Convention. The review team also said Guantanamo interrogation protocols exceed the Army Field Manual, and cells at Guantanamo for maximum- and high-security cell blocks exceed conditions in any current facility found domestically.

Given that, it is important for leaders not to govern by what is popular now in an effort to appease the polls or those abroad.

In the days ahead, I would hope Congress will play a part in the disposition of detainees and the future of Guantanamo Bay. A well-thought-out and properly executed plan offered by the president would garner bipartisan support. I would ask the president to rethink his deadline of closing Guantanamo in less than 12 months. This is a usable facility that has merit and operational worthiness.

Perhaps President Eisenhower said it best: “Peace and justice are two sides of the same coin.”

Orrin G. Hatch, Utah Republican, is a member of the Senate Intelligence and Judiciary committees.