The Hideous Pointlessness of Donald Trump’s Executive Order Keeping Guantánamo Open

31.1.18

Images of Donald Trump and Guantanamo.Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.

 

Reading Donald Trump’s pompously-entitled “Presidential Executive Order on Protecting America Through Lawful Detention of Terrorists,” which officially keeps the prison at Guantánamo Bay open, reversing a policy of closing it that was held by both of his predecessors, Barack Obama, and, in his second term, George W. Bush, is to step back in time to when Bush and his administration sought to defend their lawless escapade — back in his first term, before the novelty soured.

Straight after the 9/11 attacks, in the Authorization for Use of Military Force (AUMF), Congress authorized the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

That document underpins the detention of prisoners at Guantánamo, a detention power the Supreme Court defended in June 2004, in Hamdi v. Rumsfeld, approving imprisonment until the end of hostilities for the men held at Guantánamo, and, as I have frequently noted, essentially setting up, as a result, a parallel version of the Geneva Conventions, a bizarre development without precedent.

Nevertheless, although this situation has stood for all this time, it is depressing to see Trump’s executive order wheel out, as though there was anything fresh or relevant about it, the tired old mantra that, “Consistent with long-standing law of war principles and applicable law, the United States may detain certain persons captured in connection with an armed conflict for the duration of the conflict” — and as though it is not absurd that this alleged “conflict” has now gone on for longer that both World Wars put together — and also to claim that “[d]etention operations at U.S. Naval Station Guantánamo Bay shall continue to be conducted consistent with all applicable United States and international law, including the Detainee Treatment Act of 2005.”

That mustiness you smell? It’s a tired old administration — a bunch of old white men weary after just one year in office — revisiting laws and decisions made in 2001, 2004, 2005, as though they were yesterday, when that is not the case. It is now 16 years and a month since Guantánamo opened, and to behave as though it is still 13, 14 or 17 years ago is inappropriate.

In seeking to justify revoking Section 3 of President Obama’s Executive Order 13492 of January 22, 2009 (Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities), ordering the closure of the prison at Guantánamo, Trump’s executive order claims that “some of the current detainee population represent the most difficult and dangerous cases from among those historically detained at the facility,” and, as a result, “there is significant reason for concern regarding their reengagement in hostilities should they have the opportunity.” This, however, is essentially meaningless, as no one has been suggesting that dangerous prisoners should be released.

What those of us who have spent many long years seeking the closure of Guantánamo want are meaningful reviews for those not charged, release for those deemed not to be a threat, and credible trials for those allegedly responsible for terrorist offences, but what we have instead is a place where the law went to die — where men are held indefinitely without charge or trial, where these alleged to have committed significant acts of terrorism (including the 9/11 attacks) are caught in a Groundhog Day loop of endless, interminable pre-trial hearings in a system (the military commissions) that is unfit for purpose, and where, crucially, no one can be freed unless the president wants them to be freed.

Once you take that on board, it seems clear that Trump’s executive order — officially keeping open a prison that wasn’t going to be closed unless he wanted it to be — is, primarily, a symbolic gesture, and it is hard not to conclude that it his announcement is intended to do two things; to show the world the extent of his contempt for Muslims, and to specifically rescind whatever Barack Obama did, which, presumably, annoys him so much because of his fundamental racism, and a petulant, vindictive streak in his own character.

So what is Trump’s position on the men still held? Well, the executive order refers to the military commissions, but fails to demonstrate any understanding that they are a broken system, and that the federal courts have a much better track record of successfully prosecuting terrorists. The order also mentions the Periodic Review Boards, referring to other prisoners who “must be detained to protect against continuing, significant threats to the security of the United States, as determined by periodic reviews,” and also mentions that anyone sent to Guantánamo in future “shall be subject to the procedures for periodic review established in Executive Order 13567 of March 7, 2011 (Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force), to determine whether continued law of war detention is necessary to protect against a significant threat to the security of the United States.”

What is not clear from the order is that 26 of the 41 men still imprisoned are also still subject to PRBs, although lawyers for the men still held do not believe that, under Trump, the process offers genuine hope that any of them will be approved for release — in large part because of Trump’s own assertions that no one should be released from the prison. Also of concern are the five men still held who were approved for release under Obama — three by the Guantánamo Review Task Force of 2009, and two by the PRBs — and as a result lawyers for eleven of the men still held filed a habeas corpus lawsuit three weeks ago asking the government to justify its detention policy, and accusing Trump of being engaged in arbitrary detention, In response, District Judge Colleen Kollar-Kotelly recently set a deadline of February 16 for the government to respond.

In contrast, Trump’s own words show him continuing to cling to some dystopian fantasy world of law-free imprisonment that was tired and discredited over a decade ago. In his speech last night, he said, “We must be clear. Terrorists are not merely criminals. They are unlawful enemy combatants. And when captured overseas, they should be treated like the terrorists they are.” As my friend, the journalist Shilpa Jindia, explained, “I never thought I’d hear the words ‘enemy combatant’ uttered seriously again.”

Trump also added, with reference to reports of recidivism on the part of former prisoners whose credibility is questionable, to put it mildly, “In the past, we have foolishly released hundreds of dangerous terrorists, only to meet them again on the battlefield. So today, I am keeping another promise … to keep open the detention facilities at Guantánamo Bay.”

Trump should, instead, have paid attention to what George W. Bush said in his 2010 memoir, Decision Points: “While I believe opening Guantánamo after 9/11 was necessary, the detention facility had become a propaganda tool for our enemies and a distraction for our allies. I worked to find a way to close the prison without compromising security.”

Or as Lee Wolosky, Obama’s special envoy at the State Department for closing Guantánamo, said after the executive order was issued, “Practically, not much is expected to change with Trump’s new order. But as a symbolic matter, it changes a great deal because the two presidents before him were trying to close Guantánamo because they recognized that it was a detriment to our national security.” Trump’s executive order, however, “reaffirms his interest in perpetrating a symbol that has greatly damaged the United States.”

There is one final aspect to the executive order that obviously excites Trump — a suggestion that the US “may transport additional detainees to U.S. Naval Station Guantánamo Bay when lawful and necessary to protect the Nation,” and, allied to this, his demand that, “Within 90 days of the date of this order, the Secretary of Defense shall, in consultation with the Secretary of State, the Attorney General, the Secretary of Homeland Security, the Director of National Intelligence, and the heads of any other appropriate executive departments and agencies as determined by the Secretary of Defense, recommend policies to the President regarding the disposition of individuals captured in connection with an armed conflict, including policies governing transfer of individuals to U.S. Naval Station Guantánamo Bay.”

Trump has repeatedly wanted to send new prisoners to Guantánamo, but advisers have undoubtedly warned him that there are serious doubts about whether the Authorization for Use of Military Force can be stretched to accommodate ISIS or other groups. The executive order tries to suggest that the AUMF’s reference to “associated forces” endorses detention for whoever Trump wants to imprison, on the basis that, as it alleges, “the United States remains engaged in an armed conflict with al‑Qa’ida, the Taliban, and associated forces, including with the Islamic State of Iraq and Syria,” but it is by no means certain that this opinion is valid, and will not open up a new can of legal worms that anyone with any sense would want to avoid. And in any case, as noted above, for anyone apprehended who is accused of involvement in terrorist activities, by far the best location for them is a federal court room rather than Guantánamo.

So there we have it — a pointless executive order, reeking of Islamophobia and racism, with, at its core, a stupidity so glaring that it reveals a president who doesn’t even understand that what he’s keeping open was going to stay open anyway.

And for the men still held? Well, it seems that the military commissions will continue to limp on, in an affront to the most basic notions of justice, and that everyone else will continue to be held in a shameful limbo of imprisonment without charge and without an end in sight until the courts say that enough is enough.

To my mind, that time was reached when Trump took office, and I fervently hope that the habeas petition that is currently being dealt with in the District Court in Washington, D.C. lands a serious blow on Trump, to shatter his complacent notion that he can shut the door on anyone leaving Guantánamo ever again, and to reinvigorate, within the US establishment, the very necessary argument that, for America to regain any sense of itself as a country that respects the rule of law, Trump’s executive order must be resisted, and Guantánamo must be closed.

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 music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Donald Trump No! Please Close Guantánamo initiative, launched in January 2017), 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.

23 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my new article, analyzing the impact and the meaning of Donald Trump’s terrible decision to issue an executive order formally keeping the prison at Guantanamo Bay open. Primarily, I marvel at the pointlessness of issuing an executive order keeping open a prison that could only be closed if he wanted it closed, and I assess how Trump seems partly to be driven by Islamophobia, and by racism towards everything done by President Obama, but I also discuss how tired it is for a bunch of old white men to continue trying to defend the existence of Guantanamo, when even George W. Bush, in his second term in office, recognized the need for it to be closed.
    This is a bad day for America and its sense of itself as a nation that respects the rule of law, and I can only hope that the judge in the District Court in Washington, D.C., who is currently overseeing a habeas corpus petition on behalf of 11 of the remaining 41 prisoners, will recognize that, under Trump, they are effectively detained arbitrarily, never charged and never tried, and will remain so for the rest of their lives, unless Trump is reined in, and a meaningful opportunity is restored for prisoners to be freed. And in a slightly wider context, of course, it remains absolutely essential that Guantanamo is closed for good, and that those of us who know this, and who care about it, continue to do all we can to keep reminding the US establishment and the American people that every day it remains open ought to be a source of profound shame.

  2. Anna says...

    Make sure you watch AJE’s Newshour, with Mohamadou on skype from Nouakchott :-).

  3. Andy Worthington says...

    Thanks for the tip, Anna.

  4. Andy Worthington says...

    Hanan Bagh wrote:

    Thanks for sharing Andy ,, I find it so incredibly sad this death sentence on these men ‘effectively detained arbitrarily, never charged and never tried,’ who ‘will remain so for the rest of their lives’

  5. Andy Worthington says...

  6. Andy Worthington says...

    Mary Shepard wrote:

    I went on his Facebook page and told him to go fuck himself. I’m at the end of my rope.

  7. Andy Worthington says...

    I can’t blame you, Mary. It’s like being sent back to Bush’s first term in office and getting stuck at a dinner party with some racist old white men banging on endlessly about how necessary Guantanamo is.

  8. Andy Worthington says...

    Sandrine Ageorges-Skinner wrote:

    I can’t say I’m surprised but I’m certainly disgusted by the way everything made in USA is going downwards and taking parts of the Western world with it in this dreadful spiral.

  9. Andy Worthington says...

    Yes, I didn’t see this coming two years ago, Sandrine – but then there was Brexit too, and now both the US and the UK are suicidal basket cases.

  10. Andy Worthington says...

    Natalia R Scott wrote:

    Gracias, Andy

  11. Andy Worthington says...

    You’re most welcome, Natalia!

  12. Andy Worthington says...

    Natalya Wolf wrote:

    thank you Andy – the man and his minions are clearly a menace to the world

  13. Andy Worthington says...

    Thanks, Natalya. Yes, unfortunately, it’s far too easy to imagine the creepy old GOP Senators encouraging Trump to issue this executive order, and the new ones too – like the deeply unpleasant Tom Cotton.

  14. Andy Worthington says...

    Beth Velkey Brockman wrote:

    Thanks, Andy!!

  15. Andy Worthington says...

    You’re welcome, Beth. I’m looking for some kind of silver lining – perhaps it’s that, as many friends have been telling me, lots of people thought it was closed – until last night. Perhaps this will help us mobilize new support.

  16. Andy Worthington says...

    Beth Velkey Brockman wrote:

    I hope so, Andy!!

  17. Andy Worthington says...

    Jan Strain wrote:

    Keep nailing the fool for his inhumanity, Andy! Good job!

  18. Andy Worthington says...

    Sure thing, Jan. Try stopping me! Actually, this was a hard one to write, because I just wanted to shout at him instead of having to dissect and deal with his racist and half-formed excuses for policy.

  19. Andy Worthington says...

    Agastyan Daram wrote:

    America Has a long history of Isolationism. We are going to find the hard way that this does not work. Trump and those that elected him think they can make the world disappear. They will find that all they succeed in doing is making the world angry… It is going to be a long and difficult journey to fix our national problem…On the same terms the left must realize that they are somewhat to blame for Trumps rise to power. Some did not take the time to truly understand what the core of our country wants…Those in Guantanamo remain political prisoners. Trapped in indefinite detention.. An invalidation of our Constitution…

  20. Andy Worthington says...

    Well said, Agastyan. Good to hear from you.

  21. Andy Worthington says...

    Elena Landriscina wrote:

    Thank you for sharing this Andy.

  22. Andy Worthington says...

    You’re welcome, Elena!

  23. Guantánamo, Torture and the Trump Agenda + The Hideous Pointlessness of Donald Trump’s Executive Order Keeping Guantánamo Open by Andy Worthington – Dandelion Salad says...

    […] Andy Worthington Writer, Dandelion Salad Andy Worthington, website, Jan. 31, 2018 February 7, […]

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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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