by Andrew C. McCarthy
….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.