Keep Gitmo Open or Risk Terrorists Getting Asylum

This article was last updated on May 27, 2022

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Many readers will by now know that there was a verdict on Tuesday in the trial of Ahmed Abu Khattala, the so-called ringleader of the 2012 murderous attacks on the U.S. consulate in Benghazi, Libya. If you know that much you also probably know that Khattala was convicted of only four of the 18 charges against him. The acquittals included the most serious charges, such as murder, leaving convictions only on lesser charges, such as material support for a terrorist organization. The maximum possible sentence, capital punishment, was therefore off the table.

Reactions to the jury’s verdict on the relatively few, and lesser, charges was swift: Current CIA Director Mike Pompeo called it a “small measure of justice”, but surviving family members of the Americans murdered during the attack were less restrained. According to Fox News:

Pat Smith, the mother of Sean Smith, told Fox News she was “not surprised” and “not happy” with the Khatalla verdict. … “I think the people who bear responsibility — Secretary of State Hillary Clinton — aren’t even touched,” said Smith, who has repeatedly criticized Clinton for her response to the deadly attack.

It seems to me — putting aside the weighty and (in my mind) unresolved issue of political responsibility for the poor decision-making about how much security was needed at the Benghazi compound in light of the presence of jihadist groups known to be both heavily armed and anti-western — that there are indeed some lessons to be learned from this trial.

The first is that attempting to use our criminal justice system as a mechanism to try terrorists for offenses committed in murky, conflict-torn theaters of the globe, such as Libya or Somalia or many other such places, is a risky proposition. The best investigators and prosecutors are going to have some nearly insurmountable obstacles in gathering reliable evidence and presenting credible testimony of the type expected by U.S. jurors, who are charged with convicting only when the evidence goes “beyond a reasonable doubt”. I admit that I haven’t come to this conclusion quickly or without misgivings because I am, generally speaking, a believer in our system even though I acknowledge that outliers of injustice can and do exist.

In this instance, I empathize with the victims’ loved ones, but I sympathize with the jurors. They took their charge regarding the burden of proof seriously and did their job as they understood it; it could not have been easy, particularly knowing that the results would spark great controversy.

But to go back to the larger issue at hand: If in such circumstances we abandon the use of our courts, what this leaves us with is the decision to treat such individuals under the rules of war, as enemy combatants — also messy and not entirely satisfactory, given that they themselves do not abide by the rules of war or indeed any of the relevant Geneva conventions, including not least humane treatment of civilian populations.

This leads me to my second conclusion, but one with which I made peace a long time ago: On a practical level, that consigns us to continued use, likely for a very long time, of the terrorist brig at the Guantanamo Bay naval station run by our armed forces (see here, here, and here). I know of no other practical alternatives.

This case is additional proof, if any were needed, of the serious mistake that the Obama administration made when it tried, by hook and by crook, to close the facility down — releasing many detainees to nations such as Uruguay, which promptly lost track of them despite earnest assurances of the marvelous job they would do in ensuring that those released stayed within bounds and away from further hostilities on behalf of Islamist causes.

The case also shows what a disastrous mistake it would have been for the Obama administration to have been permitted to transfer these detainees to the continental United States. Imagine the public safety dilemma if Khatalla had been exonerated on all charges because the jury could not find adequate proof to push them over the “reasonable doubt” boundary.

What if he, then, had chosen to take maximum, mischievous, advantage of the justice and immigration systems by applying for relief from deportation by means of asylum, or withholding of removal, or our nation’s obligations under the Torture Convention? How long would we be stuck with him? Would an activist federal court in its infinite wisdom order his ultimate release from what would otherwise be indefinite detention — something about which the Supreme Court has already adversely ruled in not dissimilar circumstances? Would you want to see him free to walk the streets of the United States, especially in a sanctuary city like New York (although I do wonder if that would make even the likes of Bill DeBlasio change his tune)?

Now multiply that dilemma for each and every detainee transferred to supermax prisons in the United States. That, ladies and gentlemen, is the most cogent reason I can conceive of for the continued existence of the Guantanamo Bay facility.

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