Cliff May

During Obama’s tenure in office, additional detainees have been shipped out. Of the 166 who remain, 46 are considered too dangerous to release or transfer. That leaves 86 detainees who have been “designated for transfer if security conditions can be met.” There has been confusion — and disingenuousness — about what that means. It does not imply that they are innocent. It does not even imply that U.S. authorities are convinced they no longer pose a threat. On the contrary, of those released from Gitmo to date, an estimated 27 percent have returned to terrorist activities.

Of the 86 “designated for transfer” about 50 come from Yemen. As the New York Times has reported, “Mr. Obama himself has indefinitely barred further repatriations [to Yemen]…because of Yemen’s active al Qaeda branch.” That branch, al-Qaeda in the Arabian Peninsula, targets both Americans and the Yemeni government that we’re attempting to support. You’ll recall it was AQAP that gave us the Christmas 2009 “underwear” bomber.

Obama’s decision seems sensible to me but not to the Washington Post’s Max Fisher, who calls the situation “almost Kafkaesque in its cruel absurdity.” He asks if there isn’t something “distasteful and unsettling about imprisoning people not because they’ve done anything wrong but because they might in the future?” He does not appear to understand that he’s talking about members of al-Qaeda, the Taliban, and affiliated groups apprehended on foreign fields of battle — not goat herders who were on their merry way to a cousin’s wedding in Afghanistan when they got caught up in the malevolent maw of the U.S. military.

In times of war, presidents have the authority to kill the enemy. In the past, those captured rather than killed were considered lucky. Those doing the capturing rather than the killing were considered humane. It makes no sense — legally, morally, logically — to say that an enemy whom the president can kill with a drone or a SEAL team suddenly undergoes a metamorphosis — speaking of Kafka — transforming into an innocent-until-proven-guilty suspect in a criminal investigation if he is handcuffed rather than buried. Never in the history of armed conflict have prisoners been given such a privilege.

And should our troops come to understand that anyone they capture rather than kill is likely to be pointing a gun at them again before long, they will be incentivized to use lethal force with increased frequency. Would that be preferable from a human-rights perspective? From an intelligence perspective? From any perspective?

Something else you should know: Since taking office, Obama has not sent a single al-Qaeda or Taliban member captured in Afghanistan to Guantanamo. Instead, those captured rather than killed in that country have been detained at a facility that was recently given over to Afghan authority. How do you think the living conditions in Afghan prisons compare to those at Gitmo?

Final point: When Max Fisher referred to Kafka, he was doubtless thinking of The Trial, the story of a man arrested by a shadowy authority that conceals the nature of his crime. But Kafka also wrote The Hunger Artist, about a performer who sits in a cage for weeks on end without eating. Eventually, the public loses interest in his “art,” and he dies unnoticed and unmourned. I’m not suggesting that should influence U.S. policy. I am suggesting that Fisher read it.

Cliff May

Clifford D. May is the President of the Foundation for the Defense of Democracies.