On January 30, shortly before delivering his first State of the Union address, President Trump signed an executive order rolling back efforts by his predecessor, Barack Obama, to close Guantanamo Bay, vowing instead to keep it open indefinitely. Trump also indicated that he intends to use the prison to detain future terrorism suspects, which would be the first time in a decade that new prisoners have been brought into the facility. Although President Obama was unable to overcome opposition in order to close the facility for good, his administration was able to transfer a total of 196 of its prisoners overseas. Now 41 detainees remain, only a small minority of who have ever been charged with a crime or completed trial in a military court.
In the order itself, the Trump administration insists that keeping Guantanamo open is consistent with the law, as outlined in the 2001 Authorization for Use of Military Force. The AUMF was a response to the 9/11 terrorist attacks and gave the United States full authorization “to detain certain persons who were a part of… al-Qa’ida” as well as “associated forces engaged in hostilities against the United States”. Because the United States is still at war with al-Qa’ida, as well as the Islamic State, the administration argues that it is necessary that the facility remain in use. Furthermore, the order states that all detainees transferred to Guantanamo in the future will have to undergo “procedures for periodic review”, in order to “determine whether continued law of war detention is necessary” in the interests of U.S. national security.
The New York Times reports that the immediate effect of the order is not as important as the message it sends, and warns that “it may intensify criticism from those who argued that the prison is a stain on America’s global reputation”. Wells Dixon, an attorney at the Center for Constitutional Rights who represents some of the prison’s detainees, argues that the closure of Guantanamo is not only necessary for humanitarian purposes, but also “‘imperative to the national security of the United States’”. Even President George W. Bush eventually came to the conclusion that the prison was doing more harm than good, according to his former legal adviser John Bellinger. Others worry that the administration is exposing itself to court challenges over its implementation of U.S. counterterrorism law, or that keeping Guantanamo open will endanger Americans abroad, particularly those in the Middle East, by subjecting them to retaliation.
For more on the possible legal implications of this order, see Bruce Zagaris’ article entitled “Motion Challenges Indefinite Detention of 11 Guantanamo Detainees for 16 Years Without Charges or Trial”, in the January 2018 edition of the International Law Enforcement Reporter.