President Donald Trump on Tuesday revoked his predecessor’s order to close the detention center here and declared the prison of 41 captives open to new detainees. At the same time, his Executive Order on the topic didn’t rule out the possibility of detainee releases.
“The United States may transport additional detainees to U.S. Naval Station Guantánamo Bay when lawful and necessary to protect the nation,” according to the text of the Executive Order posted on the White House website.
The order also gave Secretary of Defense Jim Mattis 90 days to develop a policy “governing transfer of individuals” to the U.S. Navy prison in collaboration with the Secretary of State, Attorney General, Secretary of Homeland Security, Director of National Intelligence and others.
“The United States remains engaged in an armed conflict with al-Qaida, the Taliban, and associated forces, including with the Islamic State of Iraq and Syria,” it said, using language that suggested the Trump administration wanted a policy to send ISIS captives to the detention center that was set up for suspected al-Qaida and Taliban members and affiliates.
It made no mention of interrogations but declared “detention operations” at the base “legal, safe, humane, and conducted consistent with United States and international law.”
The president announced that he had signed the order in his State of the Union address, prefacing it with a remark that earned applause from members of Congress: “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.”
Of the 41 captives, 10 are charged with war crimes at military commissions, the war court President George W. Bush created and President Barack Obama reformed after signing the prison closure as a first act of his administration. Congress thwarted the closure aspiration by blocking the transfers to the United States of any Guantánamo captive, including the five alleged plotters of the Sept. 11, 2001 terror attacks. Obama’s Attorney General Eric Holder wanted them tried in federal court.
Trump’s order suggested he was backing away from a pre-inauguration vow on Twitter to halt transfers of detainees from the base. It delegated authority to Mattis to transfer away any Guantánamo captive “when appropriate, including to effectuate an order affecting the disposition of that individual issued by a court or competent tribunal of the United States having lawful jurisdiction.”
Review panels have cleared five of the 41 captives for release to countries through security agreements negotiated by U.S. diplomats. But the Department of State has shut down its office that handled those negotiations. Lawyers for 11 of the 41 captives are currently pursuing release orders from federal court.
In addition, a convicted terrorist, Ahmed al Darbi, is due to be transferred to detention in his native Saudi Arabia next month under a war court plea agreement reached during the Obama administration.
Trump also kept intact a Periodic Review Board process set up by the Obama administration to review the files of detainees held without charge and decide whether they could be safely released to other countries, with security arrangements.
Yet it offered a cautionary note: “Given that some of the current detainee population represent the most difficult and dangerous cases from among those historically detained at the facility,” the order said, “there is significant reason for concern regarding their reengagement in hostilities should they have the opportunity.”
The New York Center for Constitutional Rights, a leading legal organization representing Guantánamo detainees in the federal courts, issued a statement declaring the decision “unsurprising given Trump’s deep-seated racism, his well-documented antipathy toward all Muslims, and his endless puffing and posturing.”
The statement said the executive order “is not the last word on the fate of Guantánamo, any more than his attempted Muslim bans and arbitrary transgender military ban—struck down by the courts—were the last word on those matters.”