Winning the longest war after 9/11
Keeping Guantánamo Bay open damages our national security
The Trump administration has revived its push to maintain and even increase the number of terrorism suspects held at the detention facility at Guantánamo Bay, according to a recent report by the New York Times. Trump has already delivered on his campaign promise to halt all detainee transfers from Guantánamo, thus ensuring that the 41 detainees still held at the facility remain there despite government unanimous recommendations to transfer five of them.
Last month, U.S. Secretary of State Rex Tillerson provided bureaucratic insurance to that promise by pledging to eliminate the State Department office charged with seeking to identify receiving countries for those detainees cleared for transfer. The next step, according to the Times, would be to entrench Trump's position as a matter of law by issuing an executive order formally rejecting existing U.S. policy to pursue the facility's closure and instead declaring its indefinite operation, including the considerations that might lead new detainees to be brought to Guantánamo.
This is foolish, no matter how one looks at Guantánamo, whether from a national security perspective or a human rights perspective. I've had both. I was, until March, part of the White House team responsible for coordinating the government's counterterrorism policies. Since April, I've helped to lead a legal advocacy organization.
Yet, whichever perspective one emphasizes, the White House's revived effort to stuff down the throat of national security professionals an unwanted backtracking on Guantánamo is bad for national security, bad for human rights, and ultimately yet another sign that the Trump administration is more interested in playing politics with national security than protecting it.
From a counterterrorism perspective, the proposed executive order reported in the Times would do nothing except strain relations with allies and partners that have already signaled that a resurgent Guantánamo would make it harder for them to cooperate with the United States, including as part of the critical counter-ISIS coalition. The order would, it seems, state what's already a set of facts in the world: that the Trump administration doesn't intend to close the Guantánamo facility and might consider bringing additional detainees there.
To go further still and actually bring new detainees there, especially ones detained for their association with ISIS, would be an unwanted source of risk in the eyes of any U.S. Justice Department lawyer, who'd quickly face the undesirable scenario of having to defend before a federal judge the entire theory of the executive branch's authority for using military force against ISIS.
Meanwhile, counterterrorism officials would immediately need to do damage control with partners suddenly constrained in their ability even to consider handing custody of detainees over to the United States, much as one U.S. partner is reported to have reneged already on the intended transfer of a Sudanese terrorism suspect known as Abu Khaybar.
This is, in short, a set of distractions and detractions that national security lawyers and policymakers would dread, not welcome. And all without any actual problem to be solved, as the United States has been doing just fine using short-term detention for especially high-value detainees, such as Umm Sayyaf, who was captured in a U.S. raid in Syria in May 2015, and then relying on U.S. criminal prosecution or foreign partners for longer-term disposition.
From a human rights perspective, Trump's approach to Guantánamo revives old questions about indefinite detention in a counterterrorism conflict whose end regrettably appears nowhere in sight. Whatever one's view of the legal theories based on which detainees remain at Guantánamo, the sheer fact of such detainees being held, in some cases, for a decade and a half without either facing some form of prosecution or being released raises the type of concerns emphasized by human rights organizations.
In addition to indefinite detention, Guantánamo is associated with past detainee treatment that the International Committee of the Red Cross has decried as "tantamount to torture." That history is inseparable from Guantánamo's legacy, as is its deliberate construction as a site for detention "beyond the reach of U.S. courts," in the words of a former U.S. Defense Department detainee affairs official.
So, if the Trump administration's revived Guantánamo effort is bad for national security and bad for human rights, why do it? There's only one answer, and sadly one all too familiar for this White House: playing politics. Issuing an unnecessary and indeed unhelpful executive order on Guantánamo plays to that small streak of American politics in which embracing Guantánamo means endorsing a symbolically belligerent approach to counterterrorism, and to hell with the actual consequences.
This is the same tactic taken by this administration on other aspects of national security and law enforcement, such as imposing an anti-Muslim travel ban that responded to no actual threat but damaged relations with critical counterterrorism partners, and threatening to punish sanctuary cities in a move framed as "restoring law and order" but in fact, is certain to make it harder for law enforcement officials to learn about, investigate and punish crimes in certain communities.
The decision to eliminate the U.S. State Department's Guantánamo office is yet another step that may be viewed as politically symbolic but is actually counterproductive to national security, as that office has played a critical role in working with foreign partners to ensure that former Guantánamo detainees do not reengage in terrorist activities.
Central to Trump's campaign and early presidency has been his promise to "make America safe again" by "putting America first" and "protecting national security." But his renewed vigor for pursuing a counterproductive executive order on Guantánamo Bay reveals, yet again, that he's less interested in putting America first and protecting national security than putting politics above protecting national security. That's the opposite of making America safe.
Joshua Geltzer served as senior director for counterterrorism and deputy legal advisor at the National Security Council from 2015 to 2017. He is executive director and visiting professor of the Institute for Constitutional Advocacy and Protection at Georgetown University and a fellow in the international security program at New America.
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