Trump Finalizes Executive Order to Put ISIS Detainees in Guantánamo

The Trump administration is finalizing an executive order that effectively tells allies and Islamic State fighters alike: Guantánamo is open for business.

The imminent directive temporarily bars the transfer of any current detainees and instructs the U.S. military to bring any new detainees — explicitly including Islamic State militants — to the detention center in Guantánamo Bay, Cuba, according to a draft of the executive order, which is expected as soon as this week. The draft directive was first released Wednesday by the New York Times, and Foreign Policy independently confirmed the details with current and former officials.

But in a clear break from Trump’s controversial Jan. 27 executive order barring refugees and travel from seven Muslim-majority countries, which is currently facing several court challenges, a number of officials at the departments of Defense and State have viewed and weighed in on drafts of the Guantánamo directive, as recently as last Friday. Trump’s National Security Council, while holding the order close, has made changes in response, most notably dropping language ordering a review of whether the United States should bring back torture and reopen CIA “black sites.”

The new directive indicates a shift in U.S. counterterrorism strategy, with a renewed emphasis on capturing suspected terrorists for their intelligence value rather than killing them in targeted strikes. Observers and lawmakers say the botched Jan. 29 military raid in Yemen was motivated in part by an eagerness to capture new detainees to put in the Cuba prison.

But a return to reliance on the controversial detention center carries with it plenty of risks, including alienating allies and giving the Islamic State fodder for recruitment and propaganda, in addition to a hefty annual cost.

And by explicitly including Islamic State fighters in Guantánamo’s remit, the new directive may be stretching perilously thin the existing legal authority for the war on terror, which dates to 2001, and initially was intended for members of al Qaeda and the Taliban but has been expanded to include “associated forces.” That could set up a potential court challenge.

The new directive would rescind former President Barack Obama’s Jan. 22, 2009, order to close Guantánamo but not the accompanying Obama directives that banned torture, an apparent evolution that officials welcome.

And while the latest draft would temporarily freeze transfers — Obama had kept shipping detainees out of the facility until his final days in office — it doesn’t explicitly stop periodic reviews of detainees’ cases nor does it halt military commissions to try suspects. One detainee case review takes place Thursday, and the Pentagon said another pretrial hearing will take place in early March.

Trump’s drafted order says it is in the U.S. interest to continue operating Guantánamo “for the detention of enemy combatants captured in the armed conflict” against “al Qaeda, the Taliban, and associated forces, including individuals and networks associated with the Islamic State,” and to prevent them from returning to that fight.

It repeats a much-cited but misleading critique that 30 percent of detainees released from Guantánamo have returned to, or are suspected of returning to, the battlefield. In reality, 14 percent of the 500-plus detainees transferred by former President George W. Bush are suspected of returning to the fight, and only 6.8 percent of the roughly 200 released by Obama, according to the latest report from the director of national intelligence.

Putting Guantánamo back at the center of the U.S. fight against terrorism has its own risks. The Obama administration argued — as the Bush administration ultimately did — that Guantánamo is a recruitment tool for terrorists. Many dispute the claim, but the Islamic State has also invoked the detention facility in its propaganda. And the group is already taking credit for Trump’s immigration executive order, calling it the “blessed ban” for reinforcing its narrative that the West is at war with Islam.

Paul Lewis, Obama’s special envoy at the Pentagon for closing Guantánamo, said he hopes Trump changes his mind after he reviews the intelligence and talks to officials like Secretary of Defense James Mattis.

“If you use force, you have to detain people, and Guantánamo is humane — it’s lawful,” Lewis told FP. “But the Department of Defense doesn’t want to be in the detention business.”

“When the president has time to hear the arguments — the astronomical cost, the terrorist recruiting tool, and harm it does to foreign relations — he may change his mind,” Lewis said.

The planned new directive has some supporters on Capitol Hill, including Senate Intelligence Committee Chairman Richard Burr (R-N.C.), but Trump still appears to be cutting out key lawmakers. Senate Armed Services Committee Chairman John McCain (R-Ariz.), who supports closing Guantánamo, and Foreign Relations Committee Chairman Bob Corker (R-Tenn.) said they had not been consulted on the directive. Many members of Congress were critical of Trump’s immigration order, its chaotic rollout, and lack of congressional notification, and some are already pushing back against the next expected directive.

Sen. Patrick Leahy (D-Vt.) called keeping Guantánamo open “one of the dumbest things in the world.”

“It’s a black mark for us,” Leahy told FP, “and it’s costing us hundreds of millions of dollars for nothing.” (Last year, the Pentagon spent $445 million operating Guantánamo.)

Last week, ranking members of the relevant Senate committees wrote to Mattis and CIA Director Mike Pompeo demanding information on Trump’s plans for Guantánamo and interrogation. They have not received responses.

The order may also prod Congress into updating the legal authority for the war on terror. While the Obama administration based its campaign against the Islamic State on congressional authorizations for the use of military force (AUMFs) from 2001 and 2002, those were focused on al Qaeda and the Taliban and Saddam-era Iraq. Legal experts hotly debate the notion that the authority covers the fight against the Islamic State.

If Trump expands the population at Guantánamo with Islamic State suspects or fighters from other even more distantly related groups, lawmakers and legal experts say the prior authorities would be stretched dangerously thin and may not hold up when a detainee inevitably challenges his detention in U.S. courts.

Lewis said the AUMF “is getting increasingly old,” adding, “We’re soon going to reach a point where the courts are going to take a close look.”

Sen. Tim Kaine (D-Va.), the former Democratic vice presidential nominee, said, “I believe they need new authorization like four or five years ago.” Congress has repeatedly punted when pressed to update the military authorizations.

Photo credit: Mark Wilson/Getty Images