President Trump on Tuesday signed an executive order to keep open the military detention facility at Guantánamo Bay.
The order does not make explicit that the Trump administration will immediately begin sending new detainees to the controversial prison, but preserves the option for the president who on the campaign trail called for it to be loaded “up with some bad dudes.”
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The move reverses an Obama-era executive order to shutter the controversial prison — a goal that the former president was not able to achieve before leaving office in 2017. Forty-one inmates still remain.
How to handle individuals captured fighting for the Islamic State in Iraq and Syria (ISIS) has proved a legal and security quandary for both the Trump and Obama administrations. Although concerns about allowing terror fighters to return to the battlefield have hovered over the debate, both conservative and liberal detention experts say sending new inmates to the prison for the first time in over a decade is a shaky legal proposition.
The Tuesday order also calls for Defense Secretary James Mattis to give the White House recommendations within 90 days as to how the U.S. should handle individuals captured fighting “in connection with an armed conflict, including policies governing transfer of individuals to U.S. Naval Station Guantánamo Bay.”
“We must be clear,” Trump said during his State of the Union address before Congress Tuesday night. “Terrorists are not merely criminals. They are unlawful enemy combatants. And when captured overseas, they should be treated like the terrorists they are.”
“In the past, we have foolishly released hundreds of dangerous terrorists, only to meet them again on the battlefield. So today, I am keeping another promise… to keep open the detention facilities at Guantánamo Bay.”
In order to hold a prisoner as an enemy combatant, the government must be able to prove that the detainee is a fighter for an enemy force with whom the U.S. is in a state of armed conflict.
Both the Trump and Obama administrations have claimed that ISIS is an “associated force” covered by the military authorization that Congress passed in 2001, after the 9/11 attacks.
But the courts have not yet weighed in on that rationale — one of the key reasons that the U.S. hasn’t sent anyone to Guantánamo Bay since 2008. Transferring an ISIS fighter to the base would almost certainly invite immediate legal challenges.
Congress has grappled with updating the 2001 military authorization with little progress, stymied by fierce debate over the potential scope of any new authorization.
Congress has grappled with updating the 2001 military authorization with little progress, stymied by fierce debate over the potential scope of any new authorization.
“I am also asking the Congress to ensure that, in the fight against ISIS and al-Qaeda, we continue to have all necessary power to detain terrorists—wherever we chase them down,” Trump said Tuesday.
“While I believe opening Guantanamo after 9/11 was necessary, the detention facility had become a propaganda tool for our enemies and a distraction for our allies. I worked to find a way to close the prison without compromising security,” Bush wrote in his memoir.
Trump on the campaign trail vowed to revitalize the prison, which supporters ruefully say has become a geriatric facility for aging terrorists — alleged 9/11 mastermind Khalid Sheikh Mohammed has been held there since 2006, for example.
“We’re gonna load it up with some bad dudes, believe me, we’re gonna load it up,” Trump said in the campaign trail.
In November, Trump should he would “certainly consider” sending the suspect in a New York terror attack to Guantánamo Bay.
“I would certainly consider that, yes,” Trump told CBS. “Send him to Gitmo.”
He has the backing of a vocal group of prominent Republicans, including Sens. Lindsey Graham (S.C.) and John McCain (Ariz.), both of whom believe terror suspects should be tried through the military commission process rather than in civil court.
The Trump administration has initiated criminal prosecution for several suspected ISIS fighters since taking office in 2017.
“In many cases [for terrorists], it will now be Guantanamo Bay,” Trump said in an ad-libbed line Tuesday night.
–Updated 10:24 p.m.