Donald Trump Reportedly Close to Finalizing Executive Order Approving Imprisonment of Islamic State Prisoners at Guantánamo

8.2.17

A collage of Donald Trump and Guantanamo prisoners on the first day of the prison's operations, January 11, 2002.Please support my work! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the first two months of the Trump administration.

 

In shocking news from the Trump administration regarding Guantánamo, the New York Times has obtained a new draft executive order, “Protecting America Through Lawful Detention of Terrorist and Other Designated Enemy Elements,” directing the Pentagon to bring Islamic State prisoners to Guantánamo.

Two weeks ago, the Times published a leaked draft executive order, “Detention and Interrogation of Enemy Combatants” (which I wrote about here), calling for two executive orders issued by President Obama when he first took office in January 2009 to be revoked — one banning the CIA’s use of “black sites” and torture techniques, and the other ordering the closure of the prison at Guantánamo Bay. The draft order also called for new prisoners to be sent to Guantánamo, and for “any existing transfer efforts” to be suspended “pending a new review.”

After a huge outcry regarding the torture proposals, these were dropped from a revised order that Charlie Savage was told about, which he discussed in an article on February 4 — and which I mentioned yesterday in an article for the Close Guantánamo campaign looking primarily at opposition to the draft executive order from senior Democrats and rights groups.

Now, however, with the leaking of the new draft executive order, it has become clear that, although Trump has given up on his torture plans, he is close to telling defence secretary James Mattis to bring Islamic State prisoners to Guantánamo, “despite warnings from national security officials and legal scholars that doing so risks undermining the effort to combat the group,” as Charlie Savage described it.

In addition, unlike the version of the draft executive order that Savage wrote about on February 4, this latest version “explicitly revokes” President Obama’s executive order ordering the closure of Guantánamo within a year, and also drops “references to revitalizing the use of the military commissions system at Guantánamo for prosecuting terrorism suspects” — although that does not mean that we should not expect that proposal to resurface at some point.

The latest draft executive order calls for the imprisonment of suspected members of “Al Qaeda, the Taliban, and associated forces, including individuals and networks associated with the Islamic State.”

The reference to Islamic State — also mentioned in the first draft — has been retained despite officials warning that bringing any IS members to Guantánamo “would give federal judges an opportunity to reject the executive branch’s theory that the war against the Islamic State is legal,” in Charlie Savage’s words. Congress has never explicitly authorized war against IS, but the issue, as Savage put it, could arise if a prisoner filed a habeas corpus petition, which it is almost certain they would do.

As Savage noted, the Obama administration argued in summer 2014 that the Authorization for Use of Military Force, which was passed by Congress in the days following the 9/11 attacks, and which authorizes the pursuit and imprisonment of individuals considered to be members of Al-Qaeda, the Taliban and associated forces, also covered Islamic State, but as he explains, “while the Islamic State got its start as Al Qaeda’s affiliate in Iraq more than a decade ago, that theory is disputed because the two groups later split and went to war with each other.”

Jack Goldsmith, a Harvard Law School professor and a former Assistant Attorney General in the Office of Legal Counsel under George W. Bush, pointed out that the proposed scope of the executive order “raises huge legal risks,” adding, “If a judge says the Sept. 11 authorization does not cover such a detention, it would not only make that detention unlawful, it would weaken the legal basis for the entire war against the Islamic State.”

Savage also explained that, although Congress “bolstered the government’s power to imprison suspected members of Al Qaeda, the Taliban and associated forces by authorizing such detentions without reference to the Sept. 11 attacks” in the annual National Defense Authorization Act in 2012, lawmakers have “never explicitly authorized combat or detention operations” against Islamic State, despite providing funds for military operations against the organization.

When IS first entered Iraq from Syria and began its military conquests in 2014, President Obama “launched a bombing campaign to curtail its advances” and “put forth the theory that the group’s early ties to Al Qaeda were sufficient to bring it under the Sept. 11 war authorization without new action from Congress.”

However, in 2015, Obama officially asked Congress to enact a new Authorization for Use of Military Force against the Islamic State, but it never happened. Lawmakers were divided about whether any authorization “should place limits on the use of ground forces or impose an expiration date.” Moreover, despite Republicans having a majority throughout this time, “Congress has continued to give no sign that it has the will or the consensus to explicitly authorize war on the Islamic State.”

Charlie Savage also noted how, last year, Army Capt. Nathan Smith “sued Mr. Obama, arguing that the war was illegal because Congress had not authorized it.” District Judge Colleen Kollar-Kotelly (who ruled on several Guantánamo habeas corpus cases before the appeals court gutted habeas corpus of all meaning for the prisoners) “dismissed the lawsuit without ruling on the legal merits,” in Savage’s words, “saying the plaintiff lacked standing to bring the case.”

However, as he also noted, “any Islamic State detainee at Guantánamo would have legal standing to get a court to rule on the question of whether the group is legitimately part of the war against Al Qaeda.”

In addition, Savage spoke to Ryan Goodman, a New York University law professor who worked at the Pentagon during the Obama administration, and who told him that there were other reasons why “bringing an Islamic State detainee to Guantánamo for indefinite detention, as opposed to prosecuting him in civilian court, might raise problems.” He said that foreign allies of the US “might refuse to turn over prisoners or assist in detention operations if that was the administration’s goal,” although, even if that doesn’t turn out to be the case, he added, the legal risks of bringing a suspected member of the Islamic State to Guantánamo were “very serious.”

“If I were in the administration, I would advise that bringing ISIL fighters to Guantánamo raises too many legal risks,” Goodman said, adding, “If a court finds the 2001 statute does not apply to ISIL because of the extraordinarily remote links between ISIL and the original Al Qaeda, then it would put into legal jeopardy the executive branch’s basis for lethal operations as well as detention operations.”

I hope Donald Trump and his officials will take note of this criticism, and that the plans for bringing any new prisoners to Guantánamo will be abandoned. No new prisoner has been brought to the prison since March 2008, and that is as it should be. What remains for Donald Trump to do is to close the prison for good, as President Obama tried and failed to do, and not to consider expanding it in any way.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

49 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Bad news regarding Guantanamo, as Donald Trump is reportedly close to finalizing an executive order directing defense secretary James Mattis to bring Islamic State prisoners to Guantanamo. It is to be hoped – to put it mildly – that wiser voices prevail, like former Bush official Jack Goldsmith, who notes that it “raises huge legal risks,” because Congress has never authorized war against IS, and the government could lose in court. And also, of course, Guantanamo is a failed experiment in lawlessness, and should be shut down for good, as I persistently urge through my work. See: http://www.closeguantanamo.org/Donald-Trump-No-photos

  2. Andy Worthington says...

    Sandrine Ageorges-Skinner wrote:

    are you surprised?

  3. Andy Worthington says...

    I’m not surprised, as Trump has made it clear that he wanted to send new prisoners to Guantanamo, Sandrine, but I fervently hope that there will be high-level advice telling him not to do it. Those concerned who have clout – the big NGOs and lawyers’ organizations – need to be lobbying defence secretary James Mattis.

  4. Andy Worthington says...

    Sandrine Ageorges-Skinner wrote:

    I hope so too, but I wouldn’t bet the house on it though.

  5. Andy Worthington says...

    I’m not placing any bets on anything, Sandrine, with this dangerous clown in the White House!

  6. Andy Worthington says...

    Jamie Mayerfeld wrote:

    Horrible.

  7. Andy Worthington says...

    Yes, exactly, Jamie. The fight for sanity, fairness and justice continues on so many fronts against this ludicrously unqualified president.

  8. Andy Worthington says...

    Amy Phillips wrote:

    godddddaaaaamiiiiiittttt!

  9. Andy Worthington says...

    Yes, I hear you, Amy. We’re still not there yet, of course. It remains to be seen if defence secretary James Mattis will be interested, and if Trump does proceed there will, I think, be concerted opposition to it, and it seems likely that there will be a struggle involving the various branches of the government, as we’re currently seeing with the immigration ban.

  10. Andy Worthington says...

    Jamie Mayerfeld wrote:

    I know this isn’t directly relevant, but I do want to remind people that Jack Goldsmith gave his legal blessing to the use of torture when serving as director of the Office of Legal Counsel under President Bush.

  11. Andy Worthington says...

    Well, he inherited the “torture memo” regime of John Yoo and Jay S. Bybee, Jamie, when he became head of the OLC in October 2003, and he didn’t do anything about it until after the Abu Ghraib scandal broke in April 2004, followed by the leak of one of the “torture memos” in June 2004. However, he then withdrew the memos, and resigned, so in the story of the Bush administration’s torture program, he did a pretty good job. Here’s an article from 2007: http://www.nytimes.com/2007/09/09/magazine/09rosen.html
    And there’s also Goldsmith’s 2009 book, The Terror Presidency: http://books.wwnorton.com/books/detail.aspx?ID=11988

  12. Andy Worthington says...

    Sandrine Ageorges-Skinner wrote:

    I’m concerned the issue is going to get swept under the rug in the midst of so many other crises.

  13. Andy Worthington says...

    It will be a big deal if he tries to do it, Sandrine. There really is no good reason for anyone to be sent to Guantanamo, and that’s been apparent for many years. For Obama it was a legacy issue. I blame him for failing to close it, but not for correctly identifying that it was not somewhere anyone new should be sent to.

  14. arcticredriver says...

    Thanks Andy… John Yoo wrote an op-ed in the NYTimes. In it he wrote: “But even I have grave concerns about Mr. Trump’s uses of presidential power.”

    Mind you, Yoo doesn’t criticize Trump over how far he seems prepared to go on torture. But he is critical over his stand on immigration, and some other issues.

  15. Andy Worthington says...

    Good grief. What is the world coming to, arcticredriver? I suppose it’s a sign of quite how deranged Trump’s view of executive power is (pretending national emergencies exist when they don’t, primarily, and using that as an excuse for naked racism), but it’s troubling that John Yoo is asked/allowed to comment as though his role as the cynical chief torture apologist of the Bush era now counts for nothing. As far as I’m concerned, he is still an unindicted war criminal.

  16. Andy Worthington says...

    Sandrine Ageorges-Skinner wrote:

    Unfortunately what he is currently doing doesn’t have much to do with reason.

  17. Andy Worthington says...

    No, but he is facing serious resistance in the courts, Sandrine, and from all kinds of parts of the machinery of the government, at a state level and in the federal government, as well as having made, I think, implacable enemies in parts of the mainstream media. And all that without even mentioning the large numbers of people prepared to take to the streets if his injustices continue.

  18. Andy Worthington says...

    After George Kenneth Berger shared this, I wrote:

    Thanks for sharing, George. Every day new outrages from this really quite spectacularly unqualified president.

  19. Andy Worthington says...

    Jamie Mayerfeld wrote, in response to 11, above:

    Thanks, Andy. Perhaps Jack Goldsmith sometimes takes helpful stances these days. I continue to think that his behavior in the Bush administration was indefensible. He became director of the Office of Legal Counsel in fall 2003. Around that time he learned about the torture memos, including the two major policy-setting memos of Aug. 1, 2002. In Dec. 2003 he withdrew a different memo, the Yoo Military Interrogation Memo, but upheld the 24 interrogation techniques Rumsfeld had approved in April 2003. Shockingly, he did nothing about the two August 1, 2002, memos until after the Abu Ghraib revelations, when he withdrew one of the two memos, but not the other. He withdrew the memo setting out general legal justifications for extreme interrogation tactics. (Partly because of this, he was later booted from his job.) However, he did not withdraw the memo authorizing the 10 specific torture techniques – waterboarding, close confinement, “walling,” sleep deprivation, and all the rest. In his 2009 book, he writes, “I wasn’t . . . confident that the CIA techniques could be approved under a proper legal analysis. I didn’t affirmatively believe they were illegal either, or else I would have stopped them. I just didn’t yet know.” Translation: “I couldn’t decide whether my government’s torture practices were illegal, so I allowed them to continue.” The Bush administration continued to practice torture on the authority of the torture memo that Goldsmith left in place. I took a brief peek at the 2007 article by Jeffrey Rosen you’ve linked, and don’t consider it fully reliable.

  20. Andy Worthington says...

    Thanks, Jamie. For me, it’s certainly that period before Abu Ghraib that’s particularly troubling about Goldsmith, but I’m prepared to allow him to have had some sort of conversion away from the “dark side,” however it might have been triggered.
    After he left the OLC, Daniel Levin, the Acting Assistant Attorney General at the Office of Legal Counsel, issued a revised definition of torture on December 30, 2004 that withdrew the worst of Yoo’s innovations, i.e. that “severe” pain must mean “pain equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death”: https://www.justice.gov/sites/default/files/olc/opinions/2004/12/31/op-olc-v028-p0297_0.pdf

  21. Andy Worthington says...

    And in May 2005, the acting head of the OLC, Steven Bradbury, issued three memos, which returned definitively to the Yoo/Bybee days, approving the use of torture techniques including waterboarding, the use of walling, stress positions, physical violence, exposure to extreme temperatures, and sleep deprivation up to 180 hours. I wrote about these memos after they were unclassified by President Obama in May 2009: http://www.andyworthington.co.uk/2009/04/21/ten-terrible-truths-about-the-cia-torture-memos-part-one/
    http://www.andyworthington.co.uk/2009/04/23/ten-terrible-truths-about-the-cia-torture-memos-part-two/

  22. Andy Worthington says...

    Sanchez Montebello wrote:

    We KNEW this was coming.
    Trump is far from being a humanitarian or a civil human being. Sorry to say things will only be getting worse.

  23. Andy Worthington says...

    He is unqualified for the job, Sanchez, and I hope he doesn’t last, as his belligerent ignorance, backed by the anti-democratic aims of his advisors like Steve Bannon, poses an existential threat to the nature of the US government. For now, we must be prepared to fight him on every front.

  24. Andy Worthington says...

    Roy Randall wrote:

    I would think advocating torture could be construed as an impeachable offense.

  25. Andy Worthington says...

    Well, it never seems to be impossible to find lawyers who insist that the definition of torture is, to some extent, a matter of opinion, Roy. Fortunately, there has been such an outcry about the torture proposals that they seem to have been dropped. Now it’s just Guantanamo that we must focus on. I’m glad to see that Human Rights First issued a critical press release, but unfortunately we’re far from having any sort of unified movement against Trump on this particular topic just yet: http://www.humanrightsfirst.org/press-release/revised-executive-order-backs-dangerous-black-site-proposal-keeps-guantanamo-open

  26. Andy Worthington says...

    Diana Murtaugh Coleman wrote:

    I am so sick at heart these days. I know I need to rally and work and write and agitate. Grim times.

  27. Andy Worthington says...

    Yes, very much so, Diana, unfortunately. However, at least you’re not in the UK, and don’t have to cope with the idiocy and racism that’s so prevalent here as well regarding the national suicide note that is Brexit! A small consolation, I know, but I’m now assaulted on two fronts – at home, and in what I now realise is my adopted home, the US, as the battleground of international law regarding imprisonment.

  28. Andy Worthington says...

    Roy Randall wrote:

    The crime isn’t GITMO. The crime is the indefinite detention of someone on the basis of one branch of government’s definition of who is a terrorist. Even if the Donald found a suitable place to hold these men the crime of indefinite detention would still be performed. There are still men, if I am not mistaken, in GITMO though they have been slated for release. The chances that they will see the outside is remote now that the Donald is the President.

  29. Andy Worthington says...

    As it currently stands, Roy, the indefinite detention without charge or trial of prisoners at Guantanamo is supposed to be mitigated by their eligibility for Periodic Review Boards, which function like parole boards, assessing what their post-release behavior might be, and approving them for release if they appear to be sufficiently contrite and cooperative. This is an inadequate fix, initiated by Obama, for the problem of indefinite detention without charge or trial that was first created by George W. Bush, but it has led to the approval for release of 38 of the 64 men whose cases were reviewed, which can, I think, best be seen as a good result for a dubious process. It’s unclear yet whether Trump will keep the PRBs, but at present there are five men approved for release who are still held because Obama couldn’t find third countries to take them, or couldn’t finalise deals with their home countries, ten men facing trials, and 26 still eligible for further PRBs. See: http://www.closeguantanamo.org/Periodic-Review-Boards
    http://www.closeguantanamo.org/Prisoners

  30. Andy Worthington says...

    Roy Randall wrote in response to 25, above:

    But the question still rises: If he treads on that slippery slope he raised during the campaign could that be seen as an impeachable offense? I would guess, yes.

  31. Andy Worthington says...

    Roy Randall wrote:

    Senator McCain is a strong opponent, with his obvious history. I think his big mouth could break all kinds of bees’ nests.

  32. Andy Worthington says...

    I don’t know whether it would specifically be impeachable, Roy, but at least the deluge of criticism has dampened, and hopefully extinguished Trump’s enthusiasm for torture.

  33. Andy Worthington says...

    Roy Randall wrote:

    Maybe that might be a problem as advocating a war crime, the Holocaust, was enough to sentence to Nazi war criminals for okaying the deporting of Jews during the Nuremberg War Crimes Tribunal.

  34. Andy Worthington says...

    Roy Randall wrote:

    Of course the Germans lost. So there is that?

  35. Andy Worthington says...

    Yes, probably, Roy – victors’ justice being different from what those who lost are subjected to.

  36. Andy Worthington says...

    Roy Randall wrote:

    Thanks for all you do.

  37. Andy Worthington says...

    And thanks for your interest, Roy!

  38. Andy Worthington says...

    When Sanchez Montebello shared this, I wrote:

    Thanks for sharing, Sanchez!

  39. Andy Worthington says...

    Sanchez Montebello wrote:

    Yes. And thanks for keeping us all informed by your journalism and actions, Andy. I hope your spirits were revived by your U.S. visit. But… Next time, you’ve gotta visit the West Coast. This means your band must get a world-wide smash hit so you could go on tour of major U.S. cities. (heh)

  40. Andy Worthington says...

    I’m planning to publish a book collecting the best of my writing on Guantanamo over the last ten years, and to do a tour to promote it that will definitely take in the West Coast, Sanchez. The 10th anniversary of the start of my journalism on Guantanamo (after I finished the manuscript for my book ‘The Guantanamo Files’) is at the end of May, so hopefully in June!

  41. Andy Worthington says...

    As the smash hit is unlikely to materialise, Sanchez, it’ll just be me, but I’d love to hook up with musicians en route!

  42. Andy Worthington says...

    Bill Frank wrote:

    If GITMO was started by an executive order, why didn’t the black guy who WAS in the White House undo Bush’s? HE NEEDED NO LEGISLATION FROM CONGRESS!

  43. Andy Worthington says...

    Although Obama passed an executive order for the closure of Guantanamo, Congress passed a law banning him from using any funds to bring US prisoners to the mainland for any reason, Bill, and, basically, he should have fought them, but he didn’t. And Guantanamo wasn’t set up by executive order – it was via the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks, and via the Supreme Court, which confirmed in June 2004 that the AUMF allowed prisoners to be held at Guantanamo for the duration of the conflict with al-Qaeda and the Taliban.

  44. Andy Worthington says...

    Sanchez Montebello wrote:

    To the best of my recollection, members of BOTH political parties were against the closure of GITMO.

  45. Andy Worthington says...

    There was certainly bi-partisan opposition to Obama’s plans to use a prison in Illinois to house the transplanted Guantanamo prisoners, Sanchez. That was in late 2009, and the following year Congress imposed its ban on bringing anyone from Guantanamo to the US mainland for any reason.

  46. Andy Worthington says...

    Sanchez Montebello wrote:

    Another case of “Not in my Back Yard”.
    I think that’s the point where you and Jeff Farias had originally begun discussing the GITMO story, which is where I originally know you from. That’s such a long, long time ago, however. Jeff had such a brilliant program. Too bad he let it go.

  47. Andy Worthington says...

    Yes, agreed, Sanchez. It was a great show.

  48. Andy Worthington says...

    Bill Frank wrote:

    Congress abdicated its war making authority with that “Use of Military Force” BS THAT THEY GAVE BUSH. Obama could have used that same “law” and gone behind their backs to do it.

  49. Andy Worthington says...

    But Obama still would’ve faced massive problems, Bill, which is why he should have prioritized tacking Congress over lawmakers’ cynical obstructions, and should have refused to back down. He would have had to fund the transfer of Guantanamo prisoners to the US without Congressional backing, and there would have been cynical opposition anywhere he chose to set up a prison for them. In theory, he could have done it as commander in chief, but remember that there were people in the Pentagon who always opposed closing Guantanamo, and any effort to strong-arm them into allowing him to use a military brig, for example, would have brought him into conflict with them.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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