TSG IntelBrief: Guantanamo Bay Under the Trump Administration
January 20, 2017
Bottom Line Up Front:
• During the eight years of his presidency, outgoing U.S. President Barack Obama failed to close the detention center in Guantanamo Bay, Cuba—a key national security priority set at the beginning of his administration.
• That the facility remains open today highlights the difficulty of instituting dramatic shifts in national security policy, especially in the face of determined congressional opposition.
• Any effort by the Trump administration to revamp the Guantanamo detention program is likely to reignite a fierce debate over the use of the facility and its broader purpose.
• Despite the legal and political challenges, the Trump administration could still pursue the repopulation of Guantanamo, highlighting the legal and moral ambiguities of combating terrorism in the 21st century.
On January 16, the government of Oman accepted 10 detainees from the U.S. detention center in Guantanamo Bay, Cuba, bringing the current number of detainees at the facility to 45. The transfer marks the last—and mostly symbolic—attempt of the outgoing Obama administration to address one of its signature national security policies. While incoming President Donald Trump has suggested that the facility may see renewed use under his administration, any attempt to return the prison to its original purpose is certain to rekindle fierce debate.
The Guantanamo detention facility was originally conceived in the aftermath of 9/11 to facilitate the indefinite detention of suspected terrorists captured overseas. By the time President Obama took office in 2009, allegations of extralegal detentions and human rights abuses had taken a large toll on the credibility of the U.S. justice system. In the years since, the facility’s inability to deliver justice has only grown more obvious. Since 9/11, U.S. civilian federal courts have successfully prosecuted over 550 terrorism cases; the military commissions set up to try detainees at Guantanamo have achieved only eight successful convictions. To date, none of those associated with the attacks on 9/11 have been convicted in a military tribunal.
Despite issuing an executive order shortly after taking office to close the facility within one year, the Obama administration faced fierce resistance from a Congress that has been loath to see terror suspects housed in the United States. Unable to shutter the facility, the Obama administration attempted to make the facility’s closure a foregone conclusion by releasing the majority of the 242 prisoners then being held. In the process, domestic resistance to closing the facility was compounded by the reengagement of a somewhat significant number of former detainees in post-release terror activity. In March 2016, the Office of the Director of National Intelligence (ODNI) stated that out of nearly 700 detainees who had been transferred abroad since the opening of Guantanamo, at least 118 had reengaged in terrorism. The relatively significant rate of recidivism among those released highlights the challenge of simultaneously ensuring security while protecting due process, especially since many of the those that remain confined are too dangerous to be released. That the facility remains open and operating eight years after Obama ordered it closed highlights the difficulty of instituting dramatic shifts in national security policy, especially over determined congressional opposition.
President-elect Trump has indicated that he will stop releasing inmates from Guantanamo, and has suggested the possibility of sending new detainees to the prison. However, the U.S. is no longer capturing hundreds of suspected terrorists on foreign battlefields as it was in the aftermath of 9/11, making it unclear exactly who President Trump would send to the facility. Most of the small number of terror suspects captured overseas in the last eight years have been successfully tried by the Obama administration in the civilian federal court system. Any effort by the Trump administration to repopulate the facility will have to confront a 2008 U.S. Supreme Court decision that granted Guantanamo detainees the right to challenge their detention in court. Several other court decisions demonstrate the U.S. judicial branch’s intent to review the detention of terror suspects at Guantanamo. Additionally, the prospect of sending American citizens to Guantanamo—which Trump has suggested—would raise unprecedented legal challenges and questions over civil liberties. Sending new detainees to the facility would also face resistance from U.S. allies and global public opinion, both of which have consistently decried the facility.
Despite the clear legal and political challenges, the Trump administration could still seek to revamp the Guantanamo detention program. While the numbers are far lower than during the peak of the wars in Afghanistan and Iraq, the U.S. is almost certain to capture foreign terror suspects over the next four years; the executive branch maintains the authority and discretion to treat those suspects as either prisoners of war or criminals. The former can be detained without trial until the end of hostilities; the latter have a constitutional right to challenge their detention and seek a trial by jury. Despite over a decade of litigation on the topic since 9/11, the distinction between the two remains blurred—both legally and practically. Thus, the Trump administration’s prospective resurrection of Guantanamo Bay would only highlight the legal and moral ambiguities of combating terrorism.
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