President Donald Trump’s administration is considering ordering the Pentagon to continue using the U.S. military prison in Guantánamo Bay, Cuba, for the detention of newly captured enemy combatants linked to al-Qaeda, the Taliban, and the Islamic State.
The News York Times (NYT) published the provisions within what the newspaper claims is the latest version of a draft often intended to address the detention of terrorist elements abroad.
“A new draft order circulated this week, ‘Protecting America Through Lawful Detention of Terrorist and Other Designated Enemy Elements,’ includes some revisions,” reports NYT. “The latest version, unlike the previous one, explicitly revokes President Barack Obama’s January 2009 executive order directing the government to close the prison by January 2010, a deadline it failed to meet.”
The White House denied any affiliation to the original draft order, which appeared to lift a ban on the use of CIA “black site” prisons overseas implemented by Obama, and inaccurately cited the date of the 9/11 attacks as “September 11, 2011.”
Asked about the authenticity of the most-recent version of the draft, the White House neither confirmed nor denied, referring Breitbart News to comments White House press secretary Sean Spicer made Wednesday on actions President Trump may take in the future:
I’m not going to get ahead of any announcements that we may or may not have coming in the near future. But make no mistake, the President understands the threat that our nation faces, and he’s going to do everything he can to attack it, root it out, and destroy it.
According to the Times, the Trump administration “is nearing completion of” the “evolving” order that spells out the new detainee policy.
The newspaper reports:
The Trump White House has been circulating for internal comment a series of drafts of an executive order on handling terrorism detainees. This [latest] version, obtained by the New York Times, drops language in earlier iterations that contemplated reopening C.I.A. “black site” prisons but keeps language that would direct the Pentagon to bring future Islamic State detainees to the wartime prison at Guantánamo Bay Cuba.
The draft order states:
It is in the interest of the United States to continue detention operations at Naval Station Guantánamo Bay in order to prevent detainees from returning to the battlefield in the fight against al Qaeda, the Taliban, and associated forces, including those or other terrorists that are engaged in armed hostilities with the United States and its coalition partners.
Subject to further direction from the President and consistent with the requirements of law, the Secretary of Defense shall maintain and continue to use the detention facilities at the U.S. Naval Station Guantánamo Bay, for the detention of enemy combatants captured in the armed conflict..including such individuals captured after the effective date of this order.
The draft order directs Secretary of Defense Jim Mattis to detain members of “al-Qaida, the Taliban, and associated forces, including individuals and networks associated with the Islamic State.”
Before being inaugurated, President Trump pledged to “load [Guantánamo] up with some bad dudes.”
He also spoke against releasing prisoners who remain at the facility, commonly known as Gitmo:
There should be no further releases from Gitmo. These are extremely dangerous people and should not be allowed back onto the battlefield.
— Donald J. Trump (@realDonaldTrump) January 3, 2017
“There should be no further releases from Gitmo,” wrote then-President-elect Trump on Twitter last month. “These are extremely dangerous people and should not be allowed back onto the battlefield.”
The most-recent version of the draft executive order notes that “to date, United States efforts to prevent Guantanamo detainees from returning to terrorist activities or even combat operations against the United States once released have proven inadequate.”
It goes on to cite the latest assessment by the Office of the Director of National Intelligence (ODNI) showing that nearly 30 percent of prisoners released from Gitmo are suspected or confirmed to have re-engaged in terrorist activity.
NYT notes that career government national security officials and legal scholars have warned that the plans outlined in the executive order “would give federal judges an opportunity to reject the executive branch’s theory that the war against the Islamic State group is legal, even though Congress never explicitly authorized it.”
Former President Obama’s administration argued that it had the authority to wage war against ISIS under the Authorization for Use of Military Force against al-Qaeda and the Taliban approved by Congress in 2001.
Critics have disputed that justification because ISIS split from al-Qaeda, and the two groups are currently fighting each other.
“If I were in the administration, I would advise that bringing ISIL fighters to Guantánamo raises too many legal risks,” Ryan Goodman, a New York University law professor who worked at the Pentagon during the Obama administration, told NYT. “If a court finds the 2001 statute does not apply to ISIL because of the extraordinarily remote links between ISIL and the original al-Qaida, then it would put into legal jeopardy the executive branch’s basis for lethal operations as well as detention operations.”