President Trump’s campaign promise to “load up” the U.S. detention facility at Guantanamo Bay with captives from the war on terror has gone nowhere, and he has joined his predecessor in failing to follow through on plans for the controversial prison on the southeastern tip of Cuba.
President Barack Obama was repeatedly blocked by Congress over eight years in his push to close the detention site. Mr. Trump has faced a different set of problems after his pledge to fill the facility’s empty cells.
Even as Mr. Trump pleads with other nations to take back foreign-born Islamic State fighters now held in Syria, the White House hasn’t offered any serious proposals to move those militants to Guantanamo.
In his 2016 campaign, Mr. Trump vowed to refill the prison with “bad dudes” captured abroad.
Guantanamo now has about 40 detainees, down from a 2003 peak of 680 and down from the 41 detainees there when Mr. Obama left office, according to figures compiled by Human Rights First.
The last known prisoner sent to the prison arrived on March 14, 2008, according to the activist group — nearly 11 years ago. Mr. Trump in January 2018 signed an executive order revoking Mr. Obama’s that would have put the prison camp on a pathway to closure.
Mr. Trump and Mr. Obama had entirely different approaches to the facility. Mr. Trump wants to vastly expand it, and Mr. Obama said it had become a symbol of torture that damaged the U.S. global image and must be closed. Both presidents ran into impenetrable roadblocks.
“It’s related, but it’s different. Obama ran into a political wall, and I think Trump is running into sort of a legal wall,” said Harvard University historian Jonathan Hansen, author of the 2011 book “Guantanamo: An American History” and the upcoming book “Young Castro: The Making of a Revolutionary” about the late Cuban communist leader.
Legal limbo
Scholars say legal theory in the years since 9/11 has centered on the imprisonment at Guantanamo of al Qaeda and Taliban fighters, the two groups the U.S. pursued in Afghanistan and elsewhere in the years after the terrorist attacks on U.S. soil. The authority to move fighters from the Islamic State or other terrorist groups to the site is less clear, they say.
Doing so would also renew questions about the legal limbo where many Guantanamo inmates have found themselves. Some, such as 9/11 mastermind Khalid Sheikh Mohammed, have been awaiting a military commission trial at Guantanamo for over a decade.
Mr. Trump has suggested that he has the power to move captured Islamic State fighters to the facility. In an executive order signed last year to keep Guantanamo open, the president specifically cited the terrorist group, also known as ISIS.
“The 2001 Authorization for Use of Military Force (AUMF) and other authorities authorized the United States to detain certain persons who were … engaged in hostilities against the United States or its coalition partners,” the order reads in part. “Today, the United States remains engaged in an armed conflict … with the Islamic State of Iraq and Syria.”
But a 2017 Heritage Foundation legal analysis by Charles Stimson and Hugh Danilack warned that the administration could only complicate the situation if it does not proceed with caution.
“If the Trump administration rushes to bring ISIS fighters to Guantanamo without a stronger legal basis, those detainees might successfully challenge not only their own detention under the AUMF, but also the Trump administration’s entire legal justification for the authority to use all necessary and appropriate force in the fight against ISIS,” the two analysts wrote.
Some in Congress say they would support Mr. Trump if he resumes prisoner transfers to Guantanamo, particularly given the large numbers of Islamic State fighters who have been swept up as U.S. and allied forces advance in Syria and Iraq.
Four Republican senators — Tom Cotton of Arkansas, John Cornyn and Ted Cruz of Texas and Marco Rubio of Florida — wrote a joint letter last month urging the transfer of captured terrorists in Syria and Iraq to Guantanamo.
“It is imperative that these Islamic State fighters not be released,” the four senators wrote. “If given the opportunity, many of them will take up arms against our Syrian and Iraqi partners or attempt to infiltrate the United States and Europe to carry out terror attacks against civilian targets, like they have already done in France and Belgium.”
But instead of publicly pushing to move Islamic State fighters to Guantanamo, the Trump administration has urged countries in the Middle East, Europe and Asia to take back their citizens who fled and joined the organization.
Even if those countries don’t take back their nationals, Mr. Trump implied, the vastly underused Guantanamo facility is not an option.
“The United States is asking Britain, France, Germany and other European allies to take back over 800 ISIS fighters that we captured in Syria and put them on trial,” he tweeted last week. “The alternative is not a good one in that we will be forced to release them.”
Moving Islamic State fighters to Guantanamo surely would result in court challenges from human rights groups and other critics, but Washington seemingly has taken steps to pave the way for such a strategy. Lawmakers last March approved about $200 million in new construction for the facility, and the Defense Department last year reportedly drafted new internal guidelines that allowed for the transfer to Guantanamo of people who “present a continuing, significant threat to the security of the United States.”
Some analysts argue that the strategy lays out a clear case for moving virtually any Islamic State fighters — even those from Britain, France and elsewhere — to the site.
“There is little doubt that a number of the Islamic State fighters now held in Syria would make excellent candidates for detention at Guantanamo Bay,” Marc A. Thiessen, a resident fellow at the American Enterprise Institute and a former George W. Bush speechwriter, wrote in a piece for The Washington Post in November.
“Trump should give any complaining countries an ultimatum: Either take your nationals back, or they are headed to Guantanamo,” he wrote.
Politics of the prison
Beyond the legal wrangling, analysts say, Mr. Trump likely has created another consideration: that repopulating Guantanamo, while popular with his Republican base during the 2016 campaign, could ultimately become a political nightmare.
For one, the costs are astronomical and growing even as the population shrinks. The U.S. spends about $445 million each year to run Guantanamo. With a population of 40, the facility has a cost of more than $10 million per inmate each year, according to government numbers and human rights group fact sheets.
By contrast, it costs about $78,000 to house an inmate annually at a federal maximum security prison.
Guantanamo is likely to get even more expensive in the coming years, analysts say, as the detainees age and require more medical care.
Mr. Obama, even up until the final months of his presidency, cited those figures in his ill-fated push to close Guantanamo. He also made a much broader argument that the site — and the torture there in the immediate post-9/11 period — hurt the U.S. image abroad.
“Guantanamo harms our partnerships with allies and other countries whose cooperation we need against terrorism. When I talk to other world leaders, they bring up the fact that Guantanamo is not resolved,” Mr. Obama said in February 2016 as he kicked off his final unsuccessful push to shutter the facility. “Moreover, keeping this facility open is contrary to our values. It undermines our standing in the world. It is viewed as a stain on our broader record of upholding the highest standards of rule of law.”
But like Mr. Trump, Mr. Obama time and time again collided with political and legal realities. Some of the inmates could not be convicted because of a lack of evidence or because they were tortured, leaving U.S. military prosecutors with few options.
Attempts by Mr. Obama and the Justice Department to move Guantanamo detainees to federal prisons on the U.S. mainland were met with harsh political backlash, and the plans ultimately died.
In the end, analysts say, Mr. Obama never made a convincing big-picture argument to the American people, many of whom were simply unfamiliar with the details, costs, legal implications and foreign policy repercussions of Guantanamo.
“Obama didn’t do the work,” Mr. Hansen said. “He didn’t have a hearing to say was this a good idea or not. He had no political capital when he needed it. Nobody cared. Nobody knew the first thing about Guantanamo. It just fizzled. He didn’t have any force behind his desire to do that.”
• Ben Wolfgang can be reached at bwolfgang@washingtontimes.com.
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