Gitmo numbers likely to rise under Trump

The Guantánamo Bay detention facility in Cuba has seen its population continually shrink since 2008 to the point that it now holds only 41 prisoners.

That trend may be about to change.

{mosads}President Trump has pledged to “load” Guantánamo “up with some bad dudes,” and executive orders he is expected to sign on Thursday will represent a sea change from the last eight years of U.S. policy.

While it is uncertain whether Trump will follow up on his vow, outside groups are preparing for a major battle.

“Our people are ready to mobilize if new people are added to Guantánamo, which hasn’t happened in a long time,” said Elizabeth Beavers, senior campaigner for security with human rights at Amnesty International USA. “That’s something very serious, and I think it would activate people in a robust way.”

The White House has said Trump will act on Guantánamo but has not elaborated with details.

“On Gitmo, I think you’re going to see further action,” White House press secretary Sean Spicer said Monday. “I don’t want to get ahead of the president, but this is something that has been discussed.”

Asked by The Hill at Tuesday’s briefing whether Trump has ordered the armed forces to start capturing terrorists and bringing them to the facility, Spicer said, “We have nothing on that right now.”

Former President Barack Obama was unable to fulfill his own campaign promise to close the facility, but he did slash the population from the 242 who were there in 2009.

Guantánamo has held roughly 780 people since the first detainees were brought to the naval base in Cuba in 2002. President George W. Bush released more than 500 of the detainees he brought there, while the last known arrival was on March 14, 2008.

Obama stopped sending new detainees there, continued transferring current ones out and signed an executive order on his second day in office to close the facility within a year. But that order went unfulfilled after Congress banned transfers to the U.S., on which Obama’s closure plan relied.

Of the 41 detainees left by Obama, five were cleared for transfer by either the interagency Guantánamo Review Task Force set up in 2009 or interagency Periodic Review Boards set up in 2011. A variety of factors prevented them from making it into Obama’s final flurry of transfers. 

For example, Abdul Latif Nasir’s home country of Morocco didn’t give the United States security assurances until Dec. 28, too late to meet the congressionally mandated 30-day notification period before Obama left office, according to a court filing.

Meanwhile, Sufyian Barhoumi wasn’t transferred because former Defense Secretary Ash Carter didn’t sign off on it “based on a variety of substantive concerns, shared by multiple agencies, relevant to [Barhoumi’s] circumstances, including factors not related to [Barhourmi] himself,” according to a court filing.

Both Nasir and Barhoumi filed lawsuits earlier this month in last-ditch efforts to be transferred before Trump took office, but courts rejected them. 

Ten of the remaining detainees have either been convicted or charged by military commissions. Among those awaiting trial are five 9/11 suspects and the USS Cole bombing suspect.

The final 26 detainees are known as “forever prisoners” — people who have been deemed too dangerous to release but can’t be tried by the military commissions for reasons including a lack of evidence or evidence that can’t be used because it was obtained through torture.

The draft order published Wednesday calls for suspending any existing transfer efforts pending a new review. It also calls for the continued operation of Guantánamo to hold and try members of al Qaeda, the Taliban and “associated forces,” including the Islamic State in Iraq and Syria (ISIS). The order extends to “newly captured alien enemy combatants” from those groups.

Cully Stimson, a senior legal fellow at the conservative Heritage Foundation, said there will be legal hurdles in sending captured ISIS fighters to Guantánamo. Courts have ruled indefinite law of war detention applies to al Qaeda and Afghan Taliban fighters under the 2001 authorization for the use of military force (AUMF), but haven’t weighed in on the AUMF’s application to ISIS. 

As such, Stimson said he expects ISIS fighters sent to Guantánamo would challenge their detention in court unless Congress passes an ISIS-specific AUMF, something that has eluded lawmakers. Still, Obama’s inability to close Guantánamo means the bed space and guard force are in place for new detainees, so new al Qaeda or Taliban captives could easily be sent there, he said.

“The public could wake up tomorrow and find out that 10 new al Qaeda or Afghan Taliban detainees were sent there,” said Stimson, former deputy assistant secretary of Defense for detainee affairs under Bush. “That would not be controversial given what Trump said on the campaign trail. But it would be imprudent to send any ISIS detainees there until they study it thoroughly.”

Democrats reiterated this week their support for closing the facility under the new administration.

Sen. Ben Cardin (D-Md.), ranking member on the Senate Foreign Relations Committee, said Trump should send the “bad dudes” to federal prisons in the U.S., not Guantánamo.

“I want the bad dudes to be in our prisons here in the United States,” Cardin said. “We can handle them here.”

Sen. Jack Reed (D-R.I.), ranking member of the Senate Armed Services Committee, said he would wait to see what Trump does, but that federal courts and prisons are more than capable of handling suspected terrorists.

“I’ll wait to see what he does,” Reed said. “I think in terms of the actual convictions and incarcerations, we have a better record in the federal courts than we do at Guantánamo.”

Meanwhile, Sen. John McCain (R-Ariz.), who had supported the idea of closing the facility but turned against Obama when his closure plan lacked details, said he wasn’t sure if Trump’s pledge was to keep to facility open or fill it back up.

“You’ve got terrorists all over the world, and I’m sure we’re going to capture some of them,” added McCain, chairman of the Senate Armed Services Committee, who slammed reports that Trump’s order would include steps potentially leading to the return of torture.

“The President can sign whatever executive orders he likes. But the law is the law. We are not bringing back torture in the United States of America,” McCain said in a statement.

Sen. Lindsey Graham (R-S.C.), who is also on the Armed Services Committee, said he expects terrorists to be captured and sent to Guantánamo.

“I hope we capture as many terrorists as we can and gather intelligence consistent with the law of war,” he said, adding it “would be fine with me” if those captured were sent to Guantánamo.

Beavers said Amnesty International has a “tremendous level of disappointment with the Obama administration” about Guantánamo, and based solely on Trump’s campaign rhetoric, the future of the facility is “very much up in the air right now.”

“That uncertainty is a difficult place to be,” she said. “But the human rights community is ready to respond very quickly if the Trump administration acts.”

David Rivkin, a fellow at the Foundation for Defense of Democracies who served under two GOP presidents in the White House counsel’s office and Justice Department, among other roles, praised Trump’s plans for Guantánamo.

Obama’s main method of dealing with suspected terrorists — drone strikes — denied the United States the opportunity to interrogate them, hindering national security, Rivkin said.

“It is a good thing,” Rivkin said of Trump’s plan to keep Guantánamo open and send new detainees there. “It’s a return to sanity when dealing with enemy combatants.”