Guantanamo population isn’t growing, and prison shows no signs of closing

Four years ago, President Trump pledged to “load up” the Guantanamo Bay detention facility with “bad dudes.”

But in the ensuing years, the facility’s population has not grown. Indeed, the Trump administration recently celebrated bringing two of the most notorious alleged ISIS fighters to the United States for trial — the type of “bad dudes” Trump spoke about during the 2016 election.

Meanwhile, the infamous detention center has all but disappeared from either party’s talk on the campaign trail as the facility nears 20 years of operations.

“For the 40 men who are there, four more years of their lives have passed with no improvement,” said Daphne Eviator, Amnesty International USA’s director of security with human rights. “But in terms of the news cycle, there hasn’t been a change so people just tend to forget about it.”

Trump inherited 41 detainees at the naval base in Cuba that President George W. Bush first started sending terrorist suspects to in 2002.

President Obama had pledged to close the facility during his tenure, signing an executive order on his second day in office to close it within a year. But that order went unfulfilled after Congress banned transfers to the United States, on which Obama’s closure plan relied.

Of the 41 detainees left by Obama, five were cleared for transfer to other countries. But they didn’t make it into Obama’s final flurry of transfers out for a variety of reasons.

Since Trump took office, none of those five have been released from Guantanamo. One other detainee was transferred out in 2018 as part of a plea deal he made in 2014.

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

During the 2016 presidential campaign, Trump railed against Obama’s efforts to close Guantanamo and promised to “load it up with some bad dudes” from ISIS.

In 2018, Trump signed an executive order affirming his desire to keep the facility open and required the Pentagon to deliver a plan on how to handle any newly captured terrorists suspects.

Legal experts warned sending ISIS fighters to Guantanamo would invite an immediate legal challenge since the war authorization used to justify indefinite military detention does not explicitly mention ISIS. And if a court ruled the existing authorizations for the use of military force don’t cover ISIS, that could have undermined the legal underpinnings of the military campaign against the terrorist group.

Those warnings appear to have carried the day.

“We concluded that the litigation risk would be very high,” said Cully Stimson, a senior legal fellow at the conservative Heritage Foundation whose research on the issue circulated in the Trump administration. “I know that a lot of people started questioning whether or not that was worth the risk.”

In addition, Stimson said, the administration worked more to “crush” ISIS fighters than capturing them.

“You don’t need to detain dead people,” said Stimson, who worked on detainee issues during the George W. Bush administration.

Still, thousands of foreign ISIS fighters were captured and held by the U.S. military’s Syrian Democratic Forces (SDF) partners. Instead of sending them to Guantanamo, the Trump administration has pressed, with mixed results, for foreign countries to take custody of their citizens for prosecution.

For its part, the Trump administration has brought 27 Americans captured by the SDF back to the United States for prosecution, the Justice Department announced at the beginning of the month.

Also at the beginning of the month, the Justice Department announced charges against two British citizens accused of being part of the ISIS cell known as “The Beatles.” The notorious cell, given their name by their captives because of their British accent, beheaded Western hostages, including Americans.

Indicative of the Trump administration’s shift, Vice President Pence touted the indictments as the administration delivering justice for terrorist victims.

“Today, two of the ISIS killers responsible for Kayla Mueller’s murder were brought to justice in the United States,” Pence said at the vice presidential debate against Sen. Kamala Harris (D-Calif.). Mueller was an aid worker killed by the ISIS cell in 2015, and her parents were Pence’s guests at the debate.

Eviatar, at Amnesty, argued the reaction to bringing ISIS suspects to the United States for trial shows the opposition to Obama’s plan was “purely political.”

“The fact that there was no uproar when you brought alleged ISIS fighters to the United States just suggests that there really was never a reason not to bring people to the United States for trial and that it’s hopefully not an issue anymore,” she said.

With just about a week left in the 2020 campaign, the most prominent mention of Guantanamo has been when former Vice President Joe Biden was asked about Obama’s failure to close the facility during a Democratic primary debate last year.

Biden blamed Congress for thwarting Obama’s plans, saying “you have to have congressional authority to do it.” He also called the facility “an advertisement for creating terror.”

The Biden campaign has said he still supports closing the facility. Eviatar said she expects he would close it “eventually,” but acknowledged he “may face some complications” and that it may be a lower priority given he will “have a lot on his plate” to start.

She also said she expects Congress would repeal the ban on transferring detainees to the United States should Democrats win control of both chambers.

“I think we’ll definitely try to push a new administration on this,” Eviatar predicted. “I think there’ll be a big push, especially because we’re coming on the 20th anniversary of the prison, and I think that people might remember, ‘Oh my god, this prison is still open. People are still being held indefinitely without charge or trial. This is crazy.’”