The Trump administration appears to be making its first moves toward fulfilling a campaign promise to fill the Guantanamo Bay prison camp with “bad dudes.”
Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein visited the prison on Friday to get an update on current operations, the first concrete action the administration has taken on the facility since taking office.
Up until now, Guantanamo has been running on autopilot; the executive order from former President Obama calling for the facility to be shut down is still technically the law of the land.
But President Trump promised during the campaign to “load it up with some bad dudes,” and Sessions has called it a “very fine place” with no legal reason not to send new detainees there.
Supporters of keeping the facility open and sending new detainees there are confident Trump will fulfill that promise, even if little movement has been made.
“We have taken off the table the silly ideas that the previous administration had about Guantanamo,” said David Rivkin, constitutional litigator and a fellow at the Foundation for Defense of Democracies who served under Presidents Reagan and George H. W. Bush in the White House counsel’s office and the Justice Department.
Obama, having failed in his efforts to close the facility, left Guantanamo with 41 detainees. Five of those detainees were cleared for transfer by either the interagency Guantanamo Review Task Force set up in 2009 or the interagency Periodic Review Boards set up in 2011.
Shortly after Trump’s inauguration, various draft executive orders floated around Washington that would have moved to fulfill Trump campaign promise to begin sending new prisoners to the facility.
The orders would have revoked Obama’s executive order and suspended any existing transfer efforts pending a new review. They also would have called for the continued operation of Guantanamo to hold and try members of al Qaeda, the Taliban and “associated forces,” including the Islamic State in Iraq and Syria (ISIS).
But no such orders have been signed.
In the meantime, the processes in place at Guantanamo have churned on. The Periodic Review Boards have held handful of hearings since the inauguration, though nobody new has been cleared for transfer; the military commissions trying the 9/11 defendants are proceeding with pre-trial hearings; and the men who were challenging their detention with habeas corpus cases continue to do so.
“It’s really business as usual at Guantanamo,” said Wells Dixon, a lawyer at the Center for Constitutional Rights who is representing some detainees.
The Justice Department framed Sessions and Rosenstein’s visit as a way to get updated on how the facility is working.
“In addition to the Department of Justice's role in handling detainee-related litigation, it is important for the Department of Justice to have an up-to-date understanding of current operations,” department spokesman Ian Prior said in a statement. “The purpose of the trip is to gain that understanding by meeting with the people on the ground who are leading our government-wide efforts at GTMO.”
But the statement also mentioned recent terrorist attacks in Europe and elsewhere, which have been carried out by ISIS.
“Keeping this country safe from terrorists is the highest priority of the Trump administration,” Prior said. “Recent attacks in Europe and elsewhere confirm that the threat to our nation is immediate and real, and it remains essential that we use every lawful tool available to prevent as many attacks as possible.”
Sessions has long supported keeping the facility open and earlier this year said he see no legal reason not to send new terrorism suspects there.
“I’ve been there a number of times as a senator, and it’s just a very fine place for holding these kind of dangerous criminals,” Sessions said in an interview with conservative radio host Hugh Hewitt. “
Asked by Hewitt what his advice to Trump would be if new combatants are captured, Session said he would recommend sending them to Guantanamo.
“There’s plenty of space,” he said. “We are well equipped for it. It’s a perfect place for it. Eventually, this will be decided by the military rather than the Justice Department. But I see no legal problem whatsoever with doing that.”
But many legal experts have argued that sending ISIS fighters to Guantanamo could prove risky, since the authorization for the use of military force (AUMF) that is being used to justify indefinite law of war detention does not name ISIS.
Dixon said he and his colleagues are prepared to challenge the legality of detaining suspected ISIS fighters the moment one arrives at Guantanamo.
“We are awaiting the arrival of suspected ISIS fighters at Guantanamo so that we can represent them and challenge the application of AUMF,” he said.
In the meantime, Dixon said the business-as-usual pace of Guantanamo has taken a toll on the 41 detainees still there.
“The men are very aware of fact that no one has left Guantanamo since end of the Obama administration, and that takes a tremendous psychological toll,” he said. “It is torture by any reasonable measure.”
Rivkin chalked Trump’s lack of movement on Guantanamo to other issues taking precedence and needing to get the right staff in place, though he said he hasn’t talked to administration officials specifically about the issue.
He’s unconvinced by the argument that the AUMF has been the holdup and said he thinks “associated forces” is a broad enough term that a judge would rule in the government’s favor should ISIS fighters challenge their detention.
“If you get an ISIS guy, which court of appeals panel is going to suggest that he be let go,” Rivkin said. “I have every confidence that the issue will work itself out well.”