Donald Trump and Guantánamo: What Do We Need to Know?

By Andy Worthington, November 19, 2016

So the bad news, on Guantánamo, torture, Islamophobia and war, is that, as Charlie Savage explained in the New York Times this week, "As a presidential candidate, Donald J. Trump vowed to refill the cells of the Guantánamo Bay prison and said American terrorism suspects should be sent there for military prosecution. He called for targeting mosques for surveillance, escalating airstrikes aimed at terrorists and taking out their civilian family members, and bringing back waterboarding and a 'hell of a lot worse' — not only because 'torture works,' but because even 'if it doesn’t work, they deserve it anyway.'"

As Savage also noted, "It is hard to know how much of this stark vision for throwing off constraints on the exercise of national security power was merely tough campaign talk," but it is a disturbing position for Americans — and the rest of the world — to be in, particularly with respect to the noticeable differences between Trump and Barack Obama.

The outgoing president has some significant failures against his name, which will be discussed in detail below, but America’s first black president did not, of course, appoint a white supremacist to be his chief strategist and Senior Counselor, as Trump has done with Steve Bannon, the executive chairman of Breitbart News, an alarming far-right U.S. website. Nor did he call for a “total and complete shutdown” of America’s borders to Muslims, as Trump did last December, and nor did he suggest that there should be a registry of all Muslims, as Trump did last November.

The video evidence of Trump calling for the registry of Muslims, by the way, completely undermines his team’s claims in recent days that the president-elect "never advocated" for a registry tracking individuals based on their religion. That claim was made in response to a statement by Kansas secretary of state Kris Kobach, "reportedly a key member of Trump’s transition team, that the president-elect’s advisers are already considering the Muslim registry," as the Guardian described it.

On Guantánamo and torture, the situation is rather more complicated for Trump.

It was back in February, after President Obama reiterated his desire to close Guantánamo during a speech at the White House, which coincided with the delivery to Congress of a plan for closing the prison that had been prepared by the Pentagon, that Trump first made alarming threats about how his administration, far from closing Guantánamo, would "load it up with some bad dudes."

Obama, in contrast, stated, "I’m absolutely committed to closing the detention facility at Guantánamo," and ran through a list of compelling reasons why Guantánamo must be closed — a list he has delivered eloquently throughout his presidency. He said:

For many years, it’s been clear that the detention facility at Guantánamo Bay does not advance our national security — it undermines it. This is not just my opinion. This is the opinion of experts, this is the opinion of many in our military. It’s counterproductive to our fight against terrorists, because they use it as propaganda in their efforts to recruit. It drains military resources, with nearly $450 million spent last year alone to keep it running, and more than $200 million in additional costs needed to keep it open going forward for less than 100 detainees. Guantánamo harms our partnerships with allies and other countries whose cooperation we need against terrorism. When I talk to other world leaders, they bring up the fact that Guantánamo is not resolved.

Moreover, keeping this facility open is contrary to our values. It undermines our standing in the world. It is viewed as a stain on our broader record of upholding the highest standards of rule of law. As Americans, we pride ourselves on being a beacon to other nations, a model of the rule of law. But 15 years after 9/11 — 15 years after the worst terrorist attack in American history —we’re still having to defend the existence of a facility and a process where not a single verdict has been reached in those attacks — not a single one.

Nevertheless, as Obama also noted, "Congress has repeatedly imposed restrictions aimed at preventing us from closing this facility" in the form of legislation that has indeed made it difficult for the president to fulfill his promise — although, at Close Guantánamo we have also repeatedly reminded readers that he was able to bypass Congressional obstacles if he wished, but that he unwilling to spend political capital doing so.

"We're gonna load it up with some bad dudes"

After Obama’s eloquent presentation in the White House, Donald Trump’s response, at a campaign rally in Sparks, Nevada, was to say, "This morning, I watched President Obama talking about Gitmo, right, Guantánamo Bay, which by the way, which by the way, we are keeping open. Which we are keeping open ... and we're gonna load it up with some bad dudes, believe me, we're gonna load it up."

However, as Ben Wittes, editor-in-chief of the national security blog Lawfare, and not a man known for his liberal opinions, told NPR, "You have to ask the question, [load it up] with whom?" As NPR described it, "Because the U.S. is not fighting ground wars and taking prisoners like it once did, Wittes wonders just how Trump expects to load up Guantánamo with 'bad dudes.'"

Wittes stated, "Trump's stated military strategy and ambition are so hard to figure out that it's not at all clear to me what the captive population that would be subject to being moved to Guantánamo [is], who they would be or where they would come from."

As Carol Rosenberg of the Miami Herald noted in an article published soon after Trump’s victory, entitled, "What will President Trump do with Guantánamo?", Cully Stimson, Deputy Assistant Secretary of Defense for Detainee Affairs under George W. Bush, who also runs the National Security Program at the Heritage Foundation and is a captain in the Navy Reserve Judge Advocate Corps, pointed out that the 2001 Authorization for Use of Military Force, which was described by the Miami Herald as "essentially a declaration of war on Osama bin Laden and his Taliban hosts," is the key piece of legislation that "allows the Pentagon to hold al-Qaida and its affiliates as war prisoners at Guantánamo." Stimson explained how that’s "a narrow class of individuals," and "he urged a 'prudent, multi-step analysis' on whether to pursue wider authority to put Islamic State captives there."

In addition, the Center for Constitutional Rights' legal director Baher Azmy said that any effort to try to send an Islamic State prisoner to Guantánamo would be challenged in federal court. "Legally, there is no reasonable way an ISIS detention could be justified under the law that justifies the current detentions. That turns on the AUMF, a connection to 9/11," Azmy said, also noting, as the Miami Herald described it, that, "based on candidate Trump’s campaign rhetoric, [CCR] might find itself re-litigating already presumed settled questions."

Azmy also stated that the first order of business, if Trump were to be insistent on sending any new prisoner to Guantánamo, "would be getting access to any new Guantánamo captive, making sure he is not kept incommunicado like the Bush administration did in the first years before the U.S. Supreme Court ruled that Guantánamo captives do get to challenge their detention in federal courts."

Sending Americans to Guantánamo?

In August, in an interview with the Miami Herald, when asked if U.S. citizens accused of terrorism should be tried in military commissions at Guantánamo, Trump approved such a policy. "I know that they" — an unspecified "they" — "want to try them in our regular court systems, and I don't like that at all," Trump said, adding, "I don't like that at all. I would say they could be tried there, that'll be fine." Writing about Trump’s words this week, NPR noted that, "Under current law, American citizens cannot, in fact, be held in Guantánamo, much less tried there."

In the Miami Herald, Carol Rosenberg noted that Cully Stimson was also far from enthusiastic about this proposal, encouraging the president-elect’s team to undertake "a very vigorous discussion by the lawyers in the know about whether that would be prudent and how that will affect the other detainees at Gitmo who are not U.S. citizens."

Again, therefore, it’s worth considering that, if he did decide to pursue this plan, Trump would face serious obstacles from Democrats, lawyers, NGOs and activists, as well as international criticism.

On military commissions in general, however, it is unlikely that anything will change, and the broken system will almost certainly grind on slowly towards as yet unseeable trial dates for the seven men currently facing seemingly interminable pre-trial hearings. Trump can do little about this, although Cully Stimson told the Miami Herald said he had seen nothing "from the candidate Trump that he’s skeptical of commissions; I’m not sure he or his team would have an interest in pausing commissions."

While not created by Obama, the commissions, which were first dragged out of the history books by Dick Cheney in November 2001, were, ill-advisedly, revived by Obama in his first year in office, as part of what Charlie Savage described as his deliberations about "whether to keep indefinite wartime detentions without trial and to continue using military commission prosecutions — if not at the Guantánamo prison, which he had resolved to close, then at a replacement wartime prison." As Savage explained, "Told that several dozen detainees could not be tried for any crime but would be particularly risky to release, and that a handful might be prosecutable only under the looser rules governing evidence in a military commission, Mr. Obama decided that the responsible policy was to keep both the tribunals and the indefinite detentions available."

This lamentable decision meant that, although Attorney General Eric Holder announced in November 2009 that the five men accused of the 9/11 attacks would be tried in federal court in New York, when pressure was exerted on Obama not to pursue a federal court trial, a ready-made but unwanted back-up plan was available instead — and this, of course, is what happened. When numerous high-profile critics made an unholy fuss, Obama dropped the federal court option and, in April 2011, the men were returned to the military commission system, which, throughout Obama’s presidency, has singularly failed to deliver justice to the relatives of those who lost their lives on September 11, 2001.

Keeping Guantánamo open

President Obama might still be able to close Guantánamo before he leaves office, although it seems ever more unlikely. Here at Close Guantánamo, we will continue to do all we can to encourage him, and we ask you, if you care about the closure of Guantánamo, to join us in the latest stage of the Countdown to Close Guantánamo that we launched in January, counting down how many days are left before President Obama leaves office. Last week we launched a new video for the campaign, and for November 30, when Obama will have just 50 days left to close the prison, we’re asking supporters to print off a poster, take a photo with it and send it to us — with a message for President Obama, and even president-elect Donald Trump — if you want.

This week, in "Never mind closing Guantánamo, Trump might make it bigger," Ben Fox and Deb Riechmann reported for the Associated Press that, at this point, "[i]t would take a bold and unlikely act of defiance, one that would face legal and political challenges, by Obama to shutter the prison before leaving office." As they noted, Obama "can't close the detention center because Congress has blocked it, most crucially with a ban on transferring men to facilities in the United States," and, on Monday, at a news conference, President Obama himself said, "It is true that I have not been able to close the darn thing because of the congressional restrictions that have been placed on us."

For NPR, Rosa Brooks, a Georgetown University constitutional law professor and former Pentagon official, suggested Obama could still close Guantánamo without too much effort. "If President Obama wanted to close Guantánamo tomorrow, he could do it," she said, explaining that he "should simply ignore the ban Congress has imposed on sending any Guantánamo detainees to the U.S. for detention or trial," as NPR described it. In Brooks' words, "If I were President Obama and I wanted to close Guantánamo, I would say, I regard this particular limitation as an unconstitutional infringement on my inherent powers as commander in chief. You know, thank you for your input, Congress, but I'm doin' it."

That’s a bold take, but the reality, we suspect, is that any effort to close Guantánamo by executive order would face profound opposition in whichever state he chose to send prisoners to, in order to finally close the prison, and, as the Associated Press suggested in its recent article, Sen. Pat Roberts, a Republican who supports keeping Guantánamo open, "said last week that the Defense Department told him months ago that 'the Obama administration had neither the time nor the money to close Gitmo and move detainees to Fort Leavenworth,' in Roberts' home state of Kansas," the site of the Department of Defense's only maximum security prison, and the most likely location to which prisoners would be moved.

In his speech on Monday, President Obama further acknowledged the difficulties of unilaterally closing Guantánamo — in terms of his administration’s perceptions of the remaining prisoners, and the obstacles raised by Congress:

There is a group of very dangerous people that we have strong evidence of having been guilty of committing terrorist acts against the United States. But because of the nature of the evidence, in some cases, that evidence being compromised, it’s very difficult to put them before a typical Article III court. And that group has always been the biggest challenge for us. My strong belief and preference is that we would be much better off closing Gitmo, moving them to a different facility that was clearly governed by U.S. jurisdiction. We’d do it a lot cheaper and just as safely.""

Congress disagrees with me, and I gather that the President-elect does, as well. We will continue to explore options for doing that. But keep in mind that it’s not just a matter of what I’m willing to do. One of the things you discover about being President is that there are all these rules and norms and laws, and you got to pay attention to them. And the people who work for you are also subject to those rules and norms. And that's a piece of advice that I gave to the incoming President.

However, despite these caveats, we fully expect President Obama to do all he can to release the 20 men, out of the 60 remaining, who have been approved for release — seven by 2009’s Guantánamo Review Task Force (still held seven years later, disturbingly), and 13 others approved for release in recent years by Periodic Review Boards. An administration official, speaking anonymously, said that "officials expect to complete a 'substantial number' of those transfers before Obama leaves office on Jan. 20."

As for Donald Trump’s intentions, the Miami Herald noted that whether or not he rescinds Obama’s executive order of January 22, 2009 ordering the closure of Guantánamo simply "depends on whether he makes that a priority."

John Hudak of the Brookings Institution, who, as the Miami Herald noted, has studied executive orders, said that it would simply be "a matter of someone senior in the administration deciding this is a Day One action item for Trump’s desk in the Oval Office soon after he’s sworn in," adding that it "could be as simple … as drafting a document 'saying that Guantánamo Bay will remain open and will continue operations there.'" Hudak added, "It could also be as simple as a directive to the Department of Defense: 'Don’t close it.'"

In the Miami Herald, Carol Rosenberg also noted that those paying close attention to Guantánamo were "looking for what the White House tells the Pentagon to do about the Periodic Review Board[s] that Obama created with the mandate of reviewing the files of uncleared, uncharged captives." Rosenberg added that "International Red Cross leadership had been advocating for this for years, especially at the height of a crippling hunger strike [in 2013], to provide the captives not just hope but a Geneva Convention-style format for reviewing their status."

Torture

On torture, as Charlie Savage reported for the New York Times, repudiating torture was one of "two areas where Mr. Obama broke most cleanly with Bush-era practices" — the other being "the indefinite military detention of Americans and other terrorism suspects arrested on domestic soil." As Savage noted, "Mr. Obama issued an executive order requiring interrogators to use only techniques approved in the Army Field Manual, and he later signed a bill codifying that rule into statute" — although as some commentators, including the psychologist Jeffrey Kaye, have noted, the Army Field Manual contains an appendix, Appendix M, which "includes numerous abusive techniques, including use of solitary confinement, sleep deprivation and sensory deprivation," that can be authorized by military commanders.

In addition, as Charlie Savage noted in his wide-ranging analysis of President Obama’s counter-terrorism policies, torture was one of several areas in which his administration "ruled out criminal investigations into Bush-era officials … under a sweeping theory that the commander in chief could not be bound by anti-torture laws."

War

Charlie Savage’s analysis of President Obama’s counter-terrorism policies took as its starting point what he described as Obama’s "have-it-both-ways approach to curbing what he saw as overreaching in the war on terrorism."

"Over and over," as Savage described it, "Mr. Obama has imposed limits on his use of such powers but has not closed the door on them — a flexible approach premised on the idea that he and his successors could be trusted to use them prudently." However, with Donald Trump the unexpected winner in last week's Presidential Election, he "can now sweep away those limits and open the throttle on policies that Mr. Obama endorsed as lawful and legitimate for sparing use."

Two areas in which Trump might do this were identified by Savage as "the use of indefinite detention and military tribunals for terrorism suspects" and "targeted killings in drone strikes," a policy that, it might be said, was President Obama’s main response to the face that Bush’s program of rendition, torture and indefinite detention has been such a disaster.

As Savage explained, "After [Obama’s] use of drones to kill terrorism suspects away from war zones led to mounting concerns over civilian casualties and other matters, he issued a 'presidential policy guidance' in May 2013 that set stricter limits. They included a requirement that the target pose a threat to Americans — not just to American interests — and that there would be near certainty of no bystander deaths," something that it ought to have been obvious was extremely difficult to guarantee, but that, presumably, allowed President Obama to sleep easier at night.

In addition, Savage noted that the Obama administration “also successfully fought in court to establish that judges would not review the legality of such killing operations, even if an American citizen was the target," as happened, of course, in the contentious case of Anwar al-Awlaki, a skilful anti-U.S. publicist who was regarded as a military threat, and, even more contentiously, in the case of his 16-year old son Abdulrahman, who seems to have been killed because of who his father was and how his father’s death might have affected him rather than because of anything he had done — a disgraceful situation that, I believe, shows how mission creep has dangerously affected the entire drone-killing program.

Charlie Savage also made a point of noting that Donald Trump, "who has said he would 'bomb the hell out of ISIS,' beyond what Mr. Obama is doing, and go after civilian relatives of terrorists, prevailing over any military commanders who balked — could scrap the internal limits [on drone strikes] while invoking those precedents to shield his acts from judicial review," because of the precedents established under Obama.

As Savage also noted, Obama’s decisions on which Bush-era practices to defend in court not only potentially affect the use of torture and drone killings, but also other policy areas — "the detention of Americans and other people arrested on domestic soil as 'enemy combatants,'" for example, as in the case of Jose Padilla, a U.S. citizen who had been tortured and held incommunicado as an "enemy combatant" on the U.S. mainland. As Savage pointed out, the Obama administration "successfully argued that courts should dismiss the litigation without ruling on whether his treatment had been lawful, preventing any clear repudiation of the Bush-era legal theory."

As Savage explained, because the Obama administration "fought in court to prevent any ruling that the defunct practices had been illegal," it remains possible that "[t]he absence of a definitive repudiation could make it easier for Trump administration lawyers to revive the policies by invoking the same sweeping theories of executive power that were the basis for them in the Bush years."

Conclusion

On Obama’s legacy, opinions are divided. Charlie Savage spoke to Bruce Ackerman, a Yale University law professor who he described as "helping with a lawsuit alleging that Mr. Obama is waging an illegal war against the Islamic State because Congress never specifically authorized it," who suggested that "Mr. Obama had contributed to the growth of executive powers that Mr. Trump would inherit," including "'the fundamental institutional legacy' of relying on executive branch lawyers to produce creative legal opinions clearing the way for preferred policies."

In contrast, Geoffrey R. Stone, a University of Chicago law professor described as "a friend and adviser to Mr. Obama," defended the president’s approach. He pointed out that, after 2010, "when Republicans took over the House, internal executive branch restraints were the only option because Congress was not going to enact legislation limiting national security powers." As Savage described it, "He also said that even if Mr. Obama had gotten rid of indefinite detention or military tribunals, Mr. Trump could have brought them back."

In his own words, Professor Stone said, "Short of legislation that restricts things, there is not much a president could do in these matters to restrain a successor."

Another commentator was Gregory B. Craig, who was the White House counsel in 2009, and who, more than most, pushed to fulfill the president’s plans to close Guantánamo. Craig said that, in 2009, President Obama "was not thinking about 10 years out, but about 10 days out," and, as Charlie Savage described it, "he especially did not want to send signals to Republicans that he was a zealot or out for revenge." Instead, he "was thinking about working with Republicans and developing postpartisan relations on Guantánamo-related national security issues, not about what was going to happen a decade later."

Anthony D. Romero, the executive director of the American Civil Liberties Union, which, like Close Guantánamo, has been critical of the Obama administration’s slow approach to closing Guantánamo, said that "it was now clear that Mr. Obama had 'missed an opportunity' to fundamentally reject the sort of policies that the Bush administration put in place after the Sept. 11, 2001, attacks."

As he put it, "Obama’s failure to rein in George Bush’s national security policies hands Donald Trump a fully loaded weapon. The president’s failure to understand that these powers could not be entrusted in the hands of any president, not even his, have now put us in a position where they are in the hands of Donald Trump."

And that, of course, should worry us all.