Is Trump Changing Course on Guantanamo?

During the 2016 election campaign Donald Trump promised to fill up the prison at Guantanamo Bay with “bad dudes”. But, several months into his presidency, no new prisoners have arrived there. Moreover, his administration recently transferred al-Qaeda suspect Ali Charaf Damache from Spain to federal court in the US. According to the New York Times, which broke the news, similar cases are in the pipeline.

By adopting this approach, Trump has continued the policy of President Obama, who rejected detention at Guantanamo in favour of civilian prosecution. Trump’s Attorney General, Jeff Sessions, criticized Obama’s methods, saying in a March radio interview that Guantanamo was “a very fine place” and that “I don’t think we’re better off bringing these people to federal court”. But he seems to have changed his mind.

Admittedly, Damache’s case is not just Trump’s doing. The Obama administration had been negotiating his extradition for years. And Spain would have likely refused to allow his transfer to Guantanamo. So, this episode alone does not necessarily signify a policy reversal. Indeed, Trump’s homeland security adviser, when commenting on the administration’s detention policy at Aspen last week, did not even mention civilian trial.

Before taking office, Trump not only vowed to fill up Guantanamo, but he also bashed Obama for transferring detainees. “These are extremely dangerous people who should not be released,” he tweeted prior to his inauguration. But it went largely unnoticed, amidst the Russia scandal, that Trump added a signing statement to a new spending bill in May that may allow him to override congressional restrictions on prisoner transfers.

True, no prisoners have been released since Trump took office, even though five are cleared for transfer. But he is giving himself the latitude to move captives out of the facility, as Obama did. Surprising, perhaps, but this would not be his first counterterrorism U-turn. He vowed to authorize waterboarding and “much worse” torture, but later decided not to, claiming Gen (ret.) James Mattis (now Secretary of Defense) talked him out of it.

There are strong reasons to backtrack on Guantanamo, too. If Trump brought an ISIS captive to the camp, that individual would likely file a habeas corpus petition challenging his or her detention. The US government relies on a 2001 congressional authorization to justify its operations against ISIS. But that statute applies only to al-Qaeda and the Taliban, not ISIS, so a judge might rule that the administration lacks detention authority.

A number of prominent legal scholars have highlighted this problem, including Cully Stimson and Hugh Danilack of the Heritage Foundation who advised in a recent paper that the Trump administration should not detain ISIS fighters at the camp “until it is on a stronger legal footing.” Stimson has just been approved to serve as Trump’s General Counsel of the Navy, and will presumably have significant influence on Guantanamo policy.

One way of avoiding these legal hazards would be to have Congress pass a new authorization that applies explicitly to ISIS. As a June congressional hearing showed, there is strong bipartisan consensus in Washington that the 2001 act has been stretched too far, and that an ISIS-specific law is required. Senators Kaine and Flake have proposed a new bill, but it has apparently received little support from the administration.

There are other factors, besides the absence of a solid legal framework, that make Guantanamo a bad option for President Trump. It is far more expensive than federal prison. And America’s allies may refuse to extradite terror suspects to a facility long associated with human rights violations. Former Bush and Obama officials have stressed repeatedly that the camp undermines cooperation with foreign countries.

Moreover, once prisoners have arrived at Guantanamo, it is hard to release them. Congress has placed onerous restrictions on transferring prisoners, and, if Trump invoked his commander-in-chief power to override them, there would be objections on the Hill.

It is also difficult to prosecute captives at Guantanamo. The military commissions system at the prison is grotesquely dysfunctional, with only 8 convictions so far, 3 of which have been vacated (compare that to over 620 terrorism convictions in federal court since 9/11).

So, Trump would likely be left with a group of people he could neither release nor convict. They would be stuck in indefinite detention, a probable source of domestic and international outrage. President Obama was castigated for his failure to close Guantanamo, but — given Trump’s extreme unpopularity at home and abroad — he would surely face even greater criticism.

That said, the Syrian conflict could provide an incentive to use the facility. If Raqqa falls to coalition forces, the US and its allies might capture scores of fighters. But given the lack of cooperation with the Assad regime, they do not have a capable detention partner. In Iraq, by contrast, captives have been transferred to government and Kurdish forces. However, there have been multiple reports of torture and murder at their hands.

But even in the Syrian scenario (which has not yet materialized) the costs would likely outweigh the benefits. And does Trump really want to burden himself with yet more scandal, when he is already mired in a domestic political crisis? Of course, he has already pursued a number of controversial policies, such as the travel ban, and may do the same with Guantanamo. But it is not a foregone conclusion.