The Trump Administration is preparing an executive order that would direct the Pentagon to bring future Islamic State detainees to Guantánamo Bay prison, despite warnings from national security officials and legal scholars that doing so risks undermining what increasinly appears as an “illegal” war launched by Obama to combat the terrorist organization (which many have accused of being directly and indirectly created by Saudi Arabia and the US itself).
According to the NYT which obtained a draft of the order (see below), White House officials “have spelled out their thinking about a new detainee policy in an evolving series of drafts of an executive order being circulated among national security officials for comment.
While previous versions have shown that the draft has undergone many changes – including dropping language about reviving C.I.A. prisons – the plan to add Islamic State detainees to the Guantánamo population has remained constant. The latest version of the draft, which circulated this week, would direct Defense Secretary Jim Mattis to use Guantánamo to detain suspected members of “Al Qaeda, the Taliban, and associated forces, including individuals and networks associated with the Islamic State.”The White House has kept similar language in the draft order despite warnings from career government national security officials that carrying out its plan would give federal judges an opportunity to reject the executive branch’s theory that the war against the Islamic State is legal, even though Congress never explicitly authorized it. The issue could arise when reviewing an inevitable habeas corpus lawsuit filed by an ISIS detainee.
The Obama administration first argued in late summer 2014 that the Islamic State was part of the existing armed conflict that Congress authorized in 2001 against Al Qaeda and the Taliban. But while the Islamic State got its start as Al Qaeda’s affiliate in Iraq a decade ago, that theory is disputed because the two groups later split and went to war with each other. By pushing forward with the ISIS detention provision, legal experts challenge that Trump could undo the very basis of the unwritten US war against ISIS:
“It raises huge legal risks,” said Jack Goldsmith, a Harvard Law School professor and former senior Justice Department official in the Bush administration. “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.”
Ryan Goodman, a New York University law professor who worked at the Pentagon during the Obama administration, also chimed in and said there were other reasons bringing an Islamic State detainee to Guantánamo for indefinite detention, as opposed to prosecuting him in civilian court, might raise problems: Foreign allies, he said, might refuse to turn over prisoners or assist in detention operations if that was the administration’s goal.
But even if that turns out not to be the case, he said, the legal risks of bringing a suspected member of the Islamic State, sometimes referred to as ISIL, are “very serious.”“If I were in the administration, I would advise that bringing ISIL fighters to Guantánamo raises too many legal risks,” he said. “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.”
Ironically, if Goldsmith and Goodman are right, it would be yet another case of Trump getting blamed and punished for errors accumulated during the Obama administration. Here is a brief timeline why, from the NYT:
In the 2012 version of the annual National Defense Authorization Act, 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. But while it has provided funds for military operations against the Islamic State, it has never explicitly authorized combat or detention operations against it.In summer 2014, when the group swept out of Syria and began rapidly conquering swaths of Iraq, Mr. Obama launched a bombing campaign to curtail its advances. At the time, he 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.
Nevertheless, in 2015, the Obama administration asked Congress to enact an authorization for use of military force against the Islamic State. Lawmakers disagreed about whether it should place limits on the use of ground forces or impose an expiration date, and Congress never acted on the proposal. Congress has continued to give no sign that it has the will or the consensus to explicitly authorize war on the Islamic State.
Last year, an army captain sued Mr. Obama, arguing that the war was illegal because Congress had not authorized it. A Federal District Court judge dismissed the lawsuit without ruling on the legal merits, saying the plaintiff lacked standing to bring the case.
Ultimately, the risk is that 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, thus collapsing Obama’s nearly three year old war against ISIS which was never legally sanctioned.
The full order as released by the NYT is below: