End 15 Years Of Injustice

Donald Trump Is Still Trying to Work Out How to Expand the Use of Guantánamo Rather Than Closing It for Good

Close Guantánamo co-founder Andy Worthington urging Donald Trump to close Guantánamo during the women's march against his presidency in New York City on January 21, 2017. Check out all the photos of people urging Trump to close Guantánamo here.

By Andy Worthington, August 29, 2017

In a dispiriting sign of counter-productive obstinacy on the part of the Trump administration, the New York Times recently reported that, according to Trump administration officials who are "familiar with internal deliberations," the administration is "making a fresh attempt at drafting an executive order on handling terrorism detainees." As Charlie Savage and Adam Goldman described it, these efforts "reviv[e] a struggle to navigate legal and geopolitical obstacles" to expand the use of the prison at Guantánamo Bay, which opened over 15 and a half years ago.

Drafts of proposed executive orders relating to Guantánamo had been leaked in Trump’s first week in office, although, as the Times noted, "Congress and military and intelligence officials pushed back against ideas in early drafts, like reopening the CIA’s overseas 'black site' prisons where the Bush administration tortured terrorism suspects." As a result, the White House "dropped that and several other ideas, but as the drafts were watered down, momentum to finish the job faltered."

Alarmingly, however, Savage and Goldman noted that the Trump administration officials they spoke to told them that Trump "had been expected to sign a detention policy order three weeks ago," and that the plan only "changed after he fired his first chief of staff, Reince Priebus, on July 28 and replaced him with John F. Kelly," a retired Marine Corps general who was the commander of US Southern Command, which oversees prison operations at Guantánamo, from November 2012 to January 2016.

Kelly had clashed with Obama administration officials about Guantánamo, and as the Washington Post noted in July, the relationship between him and the Obama White House "had become so strained that, in the weeks before he retired, multiple administration officials went to the media and accused Kelly and other military leaders of endeavoring to undermine [Obama’s] Guantánamo closure plan."

Despite this, the officials said that "on July 31 — Mr. Kelly’s first day — the National Security Council announced that the White House wanted a new round of interagency deliberations" before issuing a new executive order. The Times reported that the message "came during a secure video teleconference with counterterrorism strategy and legal officials at military, diplomatic and intelligence agencies," with the agencies "asked to consider three potential versions of the order and make recommendations" by the middle of August.

The Times explained that the first of the three versions "was the version that Mr. Trump was preparing to sign three weeks ago," which "would reverse a January 2009 order by President Barack Obama that directed the government to close the prison, and make clear that the Trump administration’s policy was instead to keep it open indefinitely." According to an official who spoke to the Times, this first version "would also say that Guantánamo could be used to hold accused members of Al Qaeda or the Islamic State," even though transferring Islamic State suspects to Guantánamo "would defy warnings by national security and legal officials about creating legal risks for the broader military campaign underway in Iraq and Syria."

The second version, according to the official who spoke to the Times, "would add language that says the secretary of defense, Jim Mattis, may bring newly captured terrorism suspects to the prison … explicitly grant[ing] an authority that is merely implicit or ambiguous in the first version," while the third version "would direct Mr. Mattis to establish criteria about which new detainees should be brought to the prison," and "would also make clear that new arrivals would be given periodic reviews by a six-agency parole-like board that recommends whether to keep holding or to transfer detainees" — and which have been in operation for the existing Guantánamo prisoners since 2013.

Another official described as being "familiar with internal deliberations" said that Trump was "unlikely to sign any detention order for several weeks because the changes may be wrapped into a broader counterterrorism policy review that is underway." It was also noted that a spokesman for the National Security Council "declined to comment."

The proposals are no less troubling now than they were when first floated in January, and it is to be hoped that an executive order reviving Guantánamo doesn’t materialize. As the Times noted, to date the administration "has brought no new detainees to Guantánamo, despite Mr. Trump’s campaign vow to fill the prison back up," and this is clearly a situation that is encouraging for legal experts, who have expressed profound and repeated doubts about the legality of bringing any new prisoners to Guantánamo, as well as pointing out that federal courts remain the only reliable venue for prosecutions, and for any country with which the U.S. wishes to have a constructive relationship.

As the Times explained, "European and Middle Eastern allies will not transfer detainees to the United States without a promise they will not be sent to Guantánamo," noting that, last month, "Spain transferred custody of a terrorism suspect, Ali Charaf Damache, whom the Trump administration brought to federal court in Philadelphia for a civilian trial," while, in the case of an al-Qaeda suspect known as Abu Khaybar, "held in Yemen by an unidentified Middle Eastern ally," the administration’s efforts to secure his transfer have floundered because, according to current and former law enforcement officials, those holding him, "while willing to transfer [him], will not do so if his destination would be Guantánamo."

A Washington Post editorial condemning Trump’s plans

In an editorial on Sunday, the Washington Post weighed in with unambiguous criticism of Trump’s plans. In Bringing new detainees to Guantánamo would be a grave mistake, the Post’s editors reminded readers — and the administration — that, after the executive order was leaked in January, "Secretary of Defense Jim Mattis and CIA Director Mike Pompeo disavowed the draft after it was leaked to the press, and the order — which also called for a policy review on the possible reopening of secret CIA prisons around the globe — was never signed."

Noting that "the administration is trying again," with an interagency group "drafting a policy that would reverse President Barack Obama’s decree calling for the closure of the prison and authorize Mr. Mattis to bring suspected terrorists to Guantánamo," the Post’s editors stated, bluntly and accurately, "This would be a grave mistake."

The editors proceeded to welcome the fact that "none of the policies currently under consideration float a return to the use of CIA prisons — a practice which did great damage to the United States' international reputation after 9/11" — but pointed out that, "even absent this provision, an executive order authorizing newly captured prisoners to be detained at Guantánamo would risk alienating U.S. allies." Here at "Close Guantánamo," we also believe it would have been reassuring to see the editors add that what has been happening at Guantánamo since 2002 is also an affront to values the U.S. claims to hold dear.

In further explanation of their position, the Post’s editors stated, "Domestically, detaining ISIS fighters at the prison would be an invitation to years of risky litigation over the scope of government authority in the battle against the Islamic State," adding that "short-sighted congressional restrictions on transferring detainees out of Guantánamo, along with a system for trying detainees by military commission that has proved painfully slow and mired in legal confusion, could consign any new detainees to custody without trial for decades." As the editors added, "The military judge in the case against the 9/11 attackers has yet to even set a trial date."

The Post’s editors also noted, accurately, that, in contrast to the mess at Guantánamo, the government "has had relative success in prosecuting terrorism suspects in federal court," proceeding to explain that, in July, "the Trump administration itself extradited a suspected al Qaeda recruiter from Spain to face criminal charges — Ali Charaf Damache, a dual Algerian and Irish citizen, who was brought to a federal court in Philadelphia.

The Post’s editors also noted another, more troubling case as an "indication of the viability of criminal prosecutions," referring to the case of Ahmed Abu Khattala, "the accused ringleader of the 2012 attacks on an American compound in Libya," who was interrogated aboard a ship sailing to the United States for three days following his capture in 2014. Just two weeks ago, a federal judge ruled in the government’s favour in the case. The arrangement, as the Post’s editors described it, "allowed government interrogators [from the High-Value Detainee Interrogation Group, set up under President Obama, and consisting of military, intelligence and law enforcement officials] to question Mr. Khattala to gain intelligence before advising him of his right to remain silent, then inform him of his rights and restart the questioning with a new team of officials [from the FBI] in order to build a criminal case against him." As the editors proceeded to explain, "In holding that prosecutors could use Mr. Khattala’s statements after being read his rights, the court showed that criminal trials need not preclude the intelligence gathering that can be valuable for preventing attacks."

The editors added, "To be sure, this system is far from perfect," acknowledging that the judge in Mr. Khattala’s case "hinted that the government may face restrictions on its ability to conduct lengthy interrogations at sea," but not mentioning how the system of interrogation without rights, followed by a second interrogation by a so-called "clean team" of FBI agents, echoed what took place at the "black sites" and Guantánamo with the so-called "high-value detainees," to the dismay of many lawyers and legal experts (and ourselves).

Despite our caveats about aspects of the U.S.’s detention policy under Obama, as well as under Trump, we agree wholeheartedly with the Post’s editors’ observation that these cases "demonstrate that the United States can fight terrorism without compounding the tragic mistakes of Guantánamo Bay," and that "Mr. Trump would be wise to pay attention."

We hope Donald Trump and his officials are listening.