President Trump on January 30 issued an executive order regarding the prison at Guantánamo, Cuba entitled the “Presidential Executive Order on Protecting American Through Lawful Detention of Terrorists.” It stated, ion part, ““Detention operations at U.S. Naval Station Guantánamo Bay shall continue to be conducted consistent with all applicable United States and international law, including the Detainee Treatment Act of 2005” and the U.S. “may transport additional detainees to U.S. Naval Station Guantánamo Bay when lawful and necessary to protect the Nation.” [1]
Shortly thereafter in his State of the Union Address the President announced this action with an additional ad-libbed remark: “”in many cases terrorism detainees who are captured in the future will now be sent there.”
However, also after the speech, State and Pentagon officials said there were no plans to send new detainees to Guantanamo, a continuation of the practice for nearly the last 10 years. And John Bellinger, a legal adviser in the Bush White House, said he thought that, given past failures, there would be institutional resistance to refilling the camp. “I suspect the Departments of Defense, Justice and State would oppose sending new detainees to Guantánamo.”
This action has re-ignited controversy over the U.S. prison at the eastern end of the island of Cuba in addition to those criticisms mentioned in the prior post.[2]
Re-Ignited Controversy
According to Robert M. Chesney, a law professor at the University of Texas, Austin who on the U.S. Justice Department detention policy task force 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.” Those obstacles are the Islamic State, transfers and the military commissions trial system at the prison.
- Is the U.S. at war with Islamic State detainees?
The legal basis for detention of al-Qaeda and Taliban fighters in the prison is the Authorization for Use of Military Force (AUMF) Act that was enacted imIslamic mediately after the 9/11 attacks for military action against the perpetrators of those attacks.
But it is at best unclear, and at worst illegitimate, to claim that AUMF covers Islamic State or ISIS fighters. Thus, transferring any of these individuals to Guantánamo runs the risk of a U.S. federal court ruling that such transfers and detentions are illegal.
This legal risk could be eliminated if Congress passed a new law specifically authorizing the use of U.S. military force against ISIS of the Islamic State, but is it safe to assume Congress would do so.
2. Would the U.S. have legal authority to transfer Islamic State detainees from Guantánamo?
Although the new Executive Order says that Guantánamo detainees may be transferred to the U.S. for trial in U.S. federal courts, there are existing federal statues that forbid such transfers.
Again Congress could pass new laws abolishing those restrictions, but is it safe to assume Congress would do so.
3. Are the military commissions at Guantánamo effective ?
Professor Chesney observes that this system “has floundered in practice, with contested cases bogging down in years of pretrial hearings.” Indeed, President Trump himself this last November acknowledged this problem when he explained why he had decided token the New York truck-attack suspect in the civilian criminal justice system instead of transferring him to Guantánamo.
4. Is the operation of the Guantánamo prison too expensive?
According to the most recently available government figures, Guantanamo cost $445 million to run in fiscal year 2015—making its current costs about $11 million per inmate.
By contrast, the average cost per inmate in the federal prison system was $31,620, the federal Bureau of Prisons said in a 2016 filing.
5. Is the Guantánamo prison a tainted symbol that fuels anti-Americanism?
Indeed, the prison is such a symbol and enhances anti-American sentiment throughout the world. This was a major reason for a Washington Post editorial condemning the Trump executive order. Said the Post, the prison has “incited a storm of international criticism, handed a recruitment tool to al-Qaeda.” This cost of the prison, the Post adds, is exacerbated by the “hopelessly bogged down” military commissions at the prison in contrast to the over 600 convictions in terrorism cases in U.S. federal courts since 2001.
Mark Fallon, a former chief investigator of the Defense Department’s Criminal Investigation Task Force, said, even if no more prisoners are sent there, Trump’s announcement itself had already caused damage. “Globally [Guantánamo] symbolizes injustice, oppression and torture. And so when you see the president out there talking about expanding upon it, I’m just afraid that that it puts our troops in greater danger overseas and it jeopardizes our national security.”
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[2] President Trump’s Unsound Action Regarding the U.S. Prison at Guantánamo Bay, Cuba, dwkcommentaries.com (Jan. 31, 2018).
[2] Savage. Ordering Guantánamo to Stay Open Is One Thing, But Refilling It Is Another, N.Y. Times (Jan. 31, 2018); Editorial, Trump says he wants to refill Guantánamo. Bad Idea, Wash. Post (Feb. 1, 2018); Schwartz & Lubold, Trump’s Guantaanamo Move Keeps Prison and Detainees n Limbo, W.S.J. (Feb. 1, 2018);Borger & Smith, Guantánamo: Bush-era officials warn keeping prison open may be $6bn error, Guardian (Feb. 1, 2018).