Guantanamo detainee transfers put US in tight spot Commentary
Guantanamo detainee transfers put US in tight spot
Edited by:

Ashley Deeks [International Affairs Fellow, Council on Foreign Relations, and Visiting Fellow, Center for Strategic and International Studies]: "Last week the Department of Defense confirmed that Abdullah Saleh Ali al Ajmi, a former Guantanamo detainee, was one of the people responsible for three suicide bombings in Mosul in April, which reportedly killed seven members of the Iraqi security forces. While this event is, for several reasons, unlikely to cause significant changes to the U.S. government's policies on transferring detainees out of Guantanamo, it may prompt debate about how best to address the real risks involved in those decisions.

The al-Ajmi case highlights just how tightly the U.S. government is wedged between a rock and a hard place when it comes to closing Guantanamo, whether one believes that the U.S. government finds itself in this situation for the right reasons or the wrong ones. On the one hand, the government faces huge pressure not to detain people at Guantanamo indefinitely; on the other, it must grapple with proven concerns about releasing people who will take up arms and possibly injure U.S. and allied forces and innocent civilians. The government must look for a balance that's neither too restrictive nor too lenient — an exercise that will be impossible to get right every time.

Al Ajmi's decision to become a suicide bomber in Iraq is an unfortunate illustration of how hard it is to assess the risk that someone poses if released from Guantanamo. Consider the facts that were before the government when it weighed al Ajmi's transfer: al Ajmi, a Kuwaiti citizen who admitted that he fought with the Taliban in Afghanistan for at least eight months, seemed to be an average Taliban foot soldier (albeit a foreign fighter). Further, Kuwaitis are not known for undertaking suicide bombings. While it's not clear what kind of "security assurances" the government of Kuwait gave the United States about steps Kuwait might take to ensure that it would mitigate any remaining threat posed by al Ajmi, presumably the Kuwaitis offered some comfort. Whatever the Kuwaitis may have said, it either proved insufficient or they didn't see their assurances through. The Kuwaiti government was unable to convict al Ajmi on charges of being a member of and raising money for al Qaeda; Kuwait then issued him a passport, facilitating his ability to travel to Syria and onward to Mosul.

The al Ajmi bombing raises the question of whether the U.S. government should begin to pursue two avenues more aggressively. First, if it is not doing so already, the government might start to follow up systematically with the countries that have given it security assurances related to the detainees the United States transfers from Guantanamo. Just as the United States monitors certain promises by foreign governments to treat transferred detainees humanely, the U.S. government should be in close contact with receiving governments to determine if the latter know where the ex-detainees are and what they are doing. The United States would need to be careful not to be seen as urging foreign governments to take steps that are inconsistent with human rights or the rule of law, or to suggest that the former detainees be held at the behest of the United States.

Second, the United States might increase its efforts to find ways to replicate the success of programs such as the Saudi government's program to de-radicalize (or disengage) and rehabilitate terror suspects. This program, like others in Egypt, Indonesia, and even Iraq, is in its early stages but seems to have had some successes. The U.S. government might explore whether there are ways to encourage other states receiving Guantanamo detainees to pursue similar paths, or even whether some elements of those programs could be replicated at Guantanamo itself. Some factors that have made the Saudi program a success will not be easy to replicate, but it is worth considering whether certain parts of it can be replicated elsewhere.

Aside from the possible changes in approach discussed above, it seems unlikely that the al Ajmi case will have a drastic impact on U.S. decision-making on transferring other detainees from Guantanamo. In particular, it seems unlikely that the U.S. government will reconsider its charging decisions in military commissions and try to prosecute a greater number of people. It will be hard enough for the government to try the forty to eighty detainees currently designated for the commissions, given the myriad problems commissions have faced; it therefore seems unlikely that the United States will try to add to the charging pool people against whom it will be even more difficult to make a case. The U.S. government could go back through its files on al Ajmi to see if it missed something in approving his transfer, but such a step is unlikely to be of much help, given how different each transfer case is. Considering that the United States has continued to conduct transfers despite learning of other detainees who engaged in hostilities after being held at Guantanamo, it is doubtful that al Ajmi's case will prompt the government to reduce significantly its tolerance for risk when weighing whether to transfer or release people. (The government may be more reluctant to transfer detainees to Kuwait, though.)

Will acts like al Ajmi's — and similar acts committed by others released from Guantanamo — deter people (including all three presidential candidates) from continuing to call for Guantanamo's close? Almost certainly not. One of the arguments offered by those who seek to close Guantanamo and transfer, release, or prosecute all of the detainees is that there are hundreds or thousands of people free in the world right now who wish to do the United States grievous harm. According to this argument, if al Ajmi hadn't been one of the Mosul bombers, someone else would have taken his place — and the symbolism of Guantanamo makes it more likely that someone else would be willing to do so. Whether or not that's true, al Ajmi's case — and others like it — illustrate in sharp relief that a decision to close Guantanamo and transfer or release those detainees the United States cannot prosecute will not be without costs.

The views expressed herein are the author's alone, and not those of the U.S. Department of State or the U.S. Government."

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.