Ordering Guantánamo to Stay Open Is One Thing, but Refilling It Is Another
Posted January 31, 2018 8:28 p.m. EST
WASHINGTON — When President Donald Trump announced Tuesday in his State of the Union address that he had signed an executive order to keep the Guantánamo Bay wartime prison open, he ad-libbed a line that was not in his staff-vetted prepared remarks, declaring that “in many cases,” terrorism detainees who are captured in the future will now be sent there.
With that, Trump signaled that he still wants to fulfill a vow he made during the 2016 presidential campaign to fill the prison back up — even though he sent no new detainees there in his first year. But the problems with Guantánamo that so far have steered his administration to other options have not changed.
“This is much easier said than done,” said Robert M. Chesney, a University of Texas at Austin law professor who worked on a detention policy task force at the Justice Department in 2009. “Nothing in the new executive order changes the various legal and policy obstacles that help explain why no one was brought there in 2017, despite his campaign pledge.”
Even if one rejects the Obama administration’s arguments that it is too expensive to imprison people at the American military base in Cuba and that it is a tainted symbol that fuels anti-Americanism, Guantánamo is unattractive because of three sets of practical problems, he said. They involve the Islamic State, transfers and the military commissions trial system.
Trump’s new order was largely symbolic, rescinding an already obsolete executive order that President Barack Obama signed in January 2009. In it, Obama had directed the prison shuttered within one year. His administration failed to achieve that goal, although it did winnow the number of detainees to 41 from 242.
Obama also refused to send any new detainees there. Trump’s order, by contrast, stated that the government may send new detainees to Guantánamo “when lawful and necessary to protect the nation,” which was already his administration’s policy, in theory. And if any new detainees are someday sent there, the order directs that they receive periodic reviews before a parole-like board established under Obama.
Finally, Trump directed Defense Secretary Jim Mattis to consult his colleagues and then recommend a policy within 90 days about what to do with newly captured terrorism suspects — “including policies governing transfer of individuals” to Guantánamo.
Mattis has been reluctant to send new detainees to Guantánamo, seeing it as an unnecessary headache for the military, according to a person familiar with administration deliberations. By contrast, other officials — including Attorney General Jeff Sessions, who, while a senator, regularly voiced support for using Guantánamo, and John F. Kelly, Trump’s chief of staff, who formerly oversaw the prison as the leader of the Southern Command — are said to be more enthusiastic about trying to find a way to do so.
Trump had been on the verge of signing a version of the detention order in August when Kelly became his chief of staff. One of Kelly’s first acts was to send the draft back to national security departments and agencies for further work. The direction to Mattis to reconsider detention policy grew out of that move, as well as a push late last year by Sen. Lindsey Graham, R-S.C.
Graham is a longtime advocate of holding terrorism detainees in military custody. He was upset after the Trump administration used the civilian criminal justice system to handle two new terrorism suspects — an apparent Islamic State sympathizer who ran over people with a truck in New York, and a man suspected of participating in the 2012 attack on the consulate in Benghazi, Libya, who was captured in that country.
Government lawyers had maintained that there was no clear legal authority to place either man in military custody because there was insufficient evidence that either was part of a group covered by Congress’ Authorization for Use of Military Force, or AUMF, against the perpetrators of the Sept. 11, 2001, attacks.
But Graham argued for a less restrictive interpretation that would permit such newly captured suspects to be held in military custody for a period of interrogation without defense lawyers. He met separately in December with Sessions, Mattis and Kelly to argue that the administration was keeping the Obama-era approach, which he saw as misguided, and was promised that the Trump team would start a policy review.
Graham is also said to have proposed one alternative procedure: using Guantánamo to hold new terrorism suspects when they are captured abroad, and using the military brig in Charleston, South Carolina, for future terrorism suspects arrested on domestic soil. It remains unclear what policy Mattis will recommend.
One problem with using Guantánamo is the legal risk that would be created by sending an Islamic State suspect there, as opposed to the Qaida and Taliban suspects sent there years ago. It is contested whether the AUMF can be legitimately interpreted to cover the war against the Islamic State, as the government contends. Guantánamo detainees have the right to file habeas corpus lawsuits challenging their detention in court, so sending an Islamic State suspect there would give a judge an opportunity to rule against the government — jeopardizing the legal basis for the broader war effort. In theory, Congress could solve that problem by specifically authorizing the use of military force against the Islamic State, also known as ISIS. On Tuesday, Trump appeared to throw his support behind that idea, saying, “I am also asking the Congress to ensure that, in the fight against ISIS and al-Qaida, we continue to have all necessary power to detain terrorists — wherever we chase them down.” (It was then that Trump ad-libbed his line that many would now go to Guantánamo.)
But Congress has been debating since 2014 whether and how to enact an Islamic State-specific AUMF. It has been paralyzed by a lack of consensus over whether to impose new limits on the war effort, like limiting its duration, geographic scope and extension to associated forces.
Another problem with using Guantánamo is that once a detainee touches the base, it becomes difficult to get rid of the detainee later. That is because Congress made it harder for Obama to close the prison by imposing legal restrictions on transferring detainees who have been held at that base — but not other ones — to other countries.
Finally, once a detainee has been held at Guantánamo, the transfer restrictions also forbid sending the detainee to the United States for a civilian trial. That eliminates a way to secure a sentence that would provide a legally stable justification to keep such a prisoner locked up for life — or a legal justification to execute him or her.
The alternative is to use the military commissions trial system at Guantánamo. But that system has floundered in practice, with contested cases bogging down in years of pretrial hearings. Trump acknowledged that problem in November, explaining why he had decided to keep the New York truck attack suspect in the civilian criminal justice system.
“Would love to send the NYC terrorist to Guantánamo but statistically that process takes much longer than going through the Federal system,” Trump wrote on Twitter, adding: “Should move fast. DEATH PENALTY!”