Reading Donald Trump’s pompously-entitled “Presidential Executive Order on Protecting America Through Lawful Detention of Terrorists,” which officially keeps the prison at Guantánamo Bay open, reversing a policy of closing it that was held by both of his predecessors, Barack Obama, and, in his second term, George W. Bush, is to step back in time to when Bush and his administration sought to defend their lawless escapade — back in his first term, before the novelty soured.
Straight after the 9/11 attacks, in the Authorization for Use of Military Force (AUMF), Congress authorized the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
That document underpins the detention of prisoners at Guantánamo, a detention power the Supreme Court defended in June 2004, in Hamdi v. Rumsfeld, approving imprisonment until the end of hostilities for the men held at Guantánamo, and, as I have frequently noted, essentially setting up, as a result, a parallel version of the Geneva Conventions, a bizarre development without precedent.
Nevertheless, although this situation has stood for all this time, it is depressing to see Trump’s executive order wheel out, as though there was anything fresh or relevant about it, the tired old mantra that, “Consistent with long-standing law of war principles and applicable law, the United States may detain certain persons captured in connection with an armed conflict for the duration of the conflict” — and as though it is not absurd that this alleged “conflict” has now gone on for longer that both World Wars put together — and also to claim that “[d]etention operations at U.S. Naval Station Guantánamo Bay shall continue to be conducted consistent with all applicable United States and international law, including the Detainee Treatment Act of 2005.”
That mustiness you smell? It’s a tired old administration — a bunch of old white men weary after just one year in office — revisiting laws and decisions made in 2001, 2004, 2005, as though they were yesterday, when that is not the case. It is now 16 years and a month since Guantánamo opened, and to behave as though it is still 13, 14 or 17 years ago is inappropriate.
In seeking to justify revoking Section 3 of President Obama’s Executive Order 13492 of January 22, 2009 (Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities), ordering the closure of the prison at Guantánamo, Trump’s executive order claims that “some of the current detainee population represent the most difficult and dangerous cases from among those historically detained at the facility,” and, as a result, “there is significant reason for concern regarding their reengagement in hostilities should they have the opportunity.” This, however, is essentially meaningless, as no one has been suggesting that dangerous prisoners should be released.
What those of us who have spent many long years seeking the closure of Guantánamo want are meaningful reviews for those not charged, release for those deemed not to be a threat, and credible trials for those allegedly responsible for terrorist offences, but what we have instead is a place where the law went to die — where men are held indefinitely without charge or trial, where these alleged to have committed significant acts of terrorism (including the 9/11 attacks) are caught in a Groundhog Day loop of endless, interminable pre-trial hearings in a system (the military commissions) that is unfit for purpose, and where, crucially, no one can be freed unless the president wants them to be freed.
Once you take that on board, it seems clear that Trump’s executive order — officially keeping open a prison that wasn’t going to be closed unless he wanted it to be — is, primarily, a symbolic gesture, and it is hard not to conclude that it his announcement is intended to do two things; to show the world the extent of his contempt for Muslims, and to specifically rescind whatever Barack Obama did, which, presumably, annoys him so much because of his fundamental racism, and a petulant, vindictive streak in his own character.
So what is Trump’s position on the men still held? Well, the executive order refers to the military commissions, but fails to demonstrate any understanding that they are a broken system, and that the federal courts have a much better track record of successfully prosecuting terrorists. The order also mentions the Periodic Review Boards, referring to other prisoners who “must be detained to protect against continuing, significant threats to the security of the United States, as determined by periodic reviews,” and also mentions that anyone sent to Guantánamo in future “shall be subject to the procedures for periodic review established in Executive Order 13567 of March 7, 2011 (Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force), to determine whether continued law of war detention is necessary to protect against a significant threat to the security of the United States.”
What is not clear from the order is that 26 of the 41 men still imprisoned are also still subject to PRBs, although lawyers for the men still held do not believe that, under Trump, the process offers genuine hope that any of them will be approved for release — in large part because of Trump’s own assertions that no one should be released from the prison. Also of concern are the five men still held who were approved for release under Obama — three by the Guantánamo Review Task Force of 2009, and two by the PRBs — and as a result lawyers for eleven of the men still held filed a habeas corpus lawsuit three weeks ago asking the government to justify its detention policy, and accusing Trump of being engaged in arbitrary detention, In response, District Judge Colleen Kollar-Kotelly recently set a deadline of February 16 for the government to respond.
In contrast, Trump’s own words show him continuing to cling to some dystopian fantasy world of law-free imprisonment that was tired and discredited over a decade ago. In his speech last night, he said, “We must be clear. Terrorists are not merely criminals. They are unlawful enemy combatants. And when captured overseas, they should be treated like the terrorists they are.” As my friend, the journalist Shilpa Jindia, explained, “I never thought I’d hear the words ‘enemy combatant’ uttered seriously again.”
Trump also added, with reference to reports of recidivism on the part of former prisoners whose credibility is questionable, to put it mildly, “In the past, we have foolishly released hundreds of dangerous terrorists, only to meet them again on the battlefield. So today, I am keeping another promise … to keep open the detention facilities at Guantánamo Bay.”
Trump should, instead, have paid attention to what George W. Bush said in his 2010 memoir, Decision Points: “While I believe opening Guantánamo after 9/11 was necessary, the detention facility had become a propaganda tool for our enemies and a distraction for our allies. I worked to find a way to close the prison without compromising security.”
Or as Lee Wolosky, Obama’s special envoy at the State Department for closing Guantánamo, said after the executive order was issued, “Practically, not much is expected to change with Trump’s new order. But as a symbolic matter, it changes a great deal because the two presidents before him were trying to close Guantánamo because they recognized that it was a detriment to our national security.” Trump’s executive order, however, “reaffirms his interest in perpetrating a symbol that has greatly damaged the United States.”
There is one final aspect to the executive order that obviously excites Trump — a suggestion that the US “may transport additional detainees to U.S. Naval Station Guantánamo Bay when lawful and necessary to protect the Nation,” and, allied to this, his demand that, “Within 90 days of the date of this order, the Secretary of Defense shall, in consultation with the Secretary of State, the Attorney General, the Secretary of Homeland Security, the Director of National Intelligence, and the heads of any other appropriate executive departments and agencies as determined by the Secretary of Defense, recommend policies to the President regarding the disposition of individuals captured in connection with an armed conflict, including policies governing transfer of individuals to U.S. Naval Station Guantánamo Bay.”
Trump has repeatedly wanted to send new prisoners to Guantánamo, but advisers have undoubtedly warned him that there are serious doubts about whether the Authorization for Use of Military Force can be stretched to accommodate ISIS or other groups. The executive order tries to suggest that the AUMF’s reference to “associated forces” endorses detention for whoever Trump wants to imprison, on the basis that, as it alleges, “the United States remains engaged in an armed conflict with al‑Qa’ida, the Taliban, and associated forces, including with the Islamic State of Iraq and Syria,” but it is by no means certain that this opinion is valid, and will not open up a new can of legal worms that anyone with any sense would want to avoid. And in any case, as noted above, for anyone apprehended who is accused of involvement in terrorist activities, by far the best location for them is a federal court room rather than Guantánamo.
So there we have it — a pointless executive order, reeking of Islamophobia and racism, with, at its core, a stupidity so glaring that it reveals a president who doesn’t even understand that what he’s keeping open was going to stay open anyway.
And for the men still held? Well, it seems that the military commissions will continue to limp on, in an affront to the most basic notions of justice, and that everyone else will continue to be held in a shameful limbo of imprisonment without charge and without an end in sight until the courts say that enough is enough.
To my mind, that time was reached when Trump took office, and I fervently hope that the habeas petition that is currently being dealt with in the District Court in Washington, D.C. lands a serious blow on Trump, to shatter his complacent notion that he can shut the door on anyone leaving Guantánamo ever again, and to reinvigorate, within the US establishment, the very necessary argument that, for America to regain any sense of itself as a country that respects the rule of law, Trump’s executive order must be resisted, and Guantánamo must be closed.