A draft executive order reported to be circulating within the Trump White House calls for keeping the notorious Guantánamo Bay prison open and allowing for individuals associated with the Islamic State (ISIS) to be sent there—a plan described by one expert as "toxic policy" and "a national security disaster."
The New York Times reported Wednesday on the document, Protecting America Through Lawful Detention of Terrorists and Other Designated Enemy Elements, the latest "in an evolving series of drafts" that is "being circulated among national security officials for comment."
New to this version is a statement that rescinds President Barack Obama's 2009 executive order calling for the prison to be closed.
It also directs the Secretary of Defense to keep the facility open to house enemy combatants from conflicts with "al Qaeda, the Taliban, and associated forces, including individuals and networks associated with the Islamic State." It also allows for them to be held in "other facilities."
But holding ISIS combatants at Guantánamo could put the 2001 Authorization for Use of Military Force (AUMF), which the Obama administration used to claim legality for its war on the Islamic State, under legal scrutiny.
Robert Chesney writes at Lawfare that "it already is established that habeas jurisdiction applies to all GTMO [Guantánamo] detainees. As a result, bringing an Islamic State captive to GTMO almost certainly will result in federal judges weighing in for the first time on whether the 2001 AUMF properly extends to the Islamic State." The judges, he writes, are likely to agree that the AUMF does cover ISIS, but that is not guaranteed.
Times reporter Charlie Savage quotes Jack Goldsmith, a Harvard Law School professor and former senior Justice Department official in the Bush administration, who said: "If a judge says the Sept. 11 authorization does not cover such a detention, it would not only make that detention unlawful, it would weaken the legal basis for the entire war against the Islamic State.”
Savage adds: "Congress has continued to give no sign that it has the will or the consensus to explicitly authorize war on the Islamic State."
NPR also reported Wednesday that "far from winding down, Guantanamo's prison complex these days is gearing up. Construction projects suggests its 'expeditionary' era is ending and the notorious prison complex may be there to stay."
According to Shelby Sullivan-Bennis, an attorney with human rights organization Reprieve who represents multiple Guantánamo inmates, "Guantánamo 2.0 would be a national security disaster, fueling ISIS recruitment for years to come. It is another toxic policy that will distract and dismay but serve no useful purpose. President Trump seems determined to squander his presidency on a futile fight with the courts, the law, and basic human decency."
The offshore prison is now in its 16th year of operation, and is where, according to Jeremy Varon with Witness Against Torture, "America has institutionalized the idea of indefinite detention without charge or trial." President Trump, however, has vowed to "load up" the prison with "bad dudes."
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