More than 15 years after it accepted its first war on terror detainees, Guantanamo Bay is once again at the center of a political firestorm, as President Donald Trump is learning, like his predecessor, that making big changes in US detention policy is harder than it looks.
Even within the administration, there are mixed messages about whether there is trust in criminal courts to handle terrorism.
In the wake of a deadly terrorist attack in New York earlier this week, Trump on Wednesday suggested he’d be open to holding the suspect, a 29-year-old Uzbek national who has lived in the United States since 2010, as an enemy combatant at the Cuba facility nicknamed Gitmo.
“Send him to Gitmo. I would certainly consider that,” Trump said at a Cabinet meeting on Wednesday. “We need quick justice and we need strong justice — much quicker and much stronger than we have right now. Because what we have right now is a joke, and it’s a laughingstock.”
The suspect, Sayfullo Saipov, was later charged in federal courts in New York, and Trump backtracked on Thursday, saying he recognized that Guantanamo may actually mean a slower process.
“Would love to send the NYC terrorist to Guantanamo but statistically that process takes much longer than going through the Federal system…” Trump tweeted, adding: “…There is also something appropriate about keeping him in the home of the horrible crime he committed. Should move fast. DEATH PENALTY!”
Even so, Trump’s attorney general, Jeff Sessions, on Thursday left open the possibility that Guantanamo detention could remain an option.
“Terrorists should know: This administration will use all lawful tools at our disposal, including prosecution in Article III courts and at Guantanamo Bay,” Sessions’ prepared speech in New York said. “If anyone has any doubt about that, they can ask the more than 500 criminals whom the Department of Justice has convicted of terrorism-related offenses since 9/11. And they can ask the dozens of enemy combatants in Guantanamo Bay.”
South Carolina Sen. Lindsey Graham, a noted hawk, originally praised the President for considering detaining Saipov, then harshly criticized the change of heart and decision to charge him in federal courts.
“If there was ever a candidate to be held as an enemy combatant for intelligence gathering purposes, it is Sayfullo Saipov — a self-declared ‘Soldier of the Caliphate,'” Graham said in a statement.
But in further evidence of the internal struggle of the administration, Sessions was introduced by Joon Kim, acting US attorney for the Southern District of New York who on Wednesday, after the “laughingstock” comments, forcefully defended the success of the civilian courts.
“The folks in that unit working with the (New York Police Department) and the (Joint Terrorism Task Force) have a long and unblemished track record of successfully investigating and prosecuting domestic and international terrorists,” Kim said.
The battle echoes a fight by Trump’s predecessor, President Barack Obama, in trying to transform US policy on Guantanamo. Coming into office with a promise to close the detention facility, Obama never succeeded, and ended up having to continue to operate and legally defend practices there.
Obama did wind down use of the facility and transferred many prisoners out of it, and didn’t send any further detainees to Guantanamo. There were 41 detainees at Guantánamo Bay as of August 2017.
Murky legal battle
Experts say Trump pursuing Guantanamo detention in this case, where a US resident was arrested on US soil, would open a potentially unwise legal battle for the administration, and that it might only expose the ongoing challenges of the military commissions hearing cases there.
“There are three layers here,” said Steve Vladeck, University of Texas School of Law professor and CNN legal contributor. “I think the first is, is it legal? The second is, is it necessary? And the third is, it is wise? And I think we’re 0 for 3.”
Courts have not ruled on whether the current Authorization of Military Force would apply to ISIS or whether a person arrested on US soil could be held at Guantanamo, both major legal challenges such a detention would face, Vladeck said. Additionally, civilian courts are able to handle terror trials and waive Miranda rights in exigent circumstances, undercutting the necessity, he added. And, as Trump acknowledged Thursday, the Guantanamo process tends to be slow.
“If your goal is to actually get justice for the victims, Guantanamo is a black hole, whereas the civilian courts are there, they’re fast, their legitimacy is not regularly questioned,” Vladeck said.
More controversy at Gitmo
Columbia Law professor Matthew Waxman served in the Bush administration and specifically worked on Guantanamo Bay detention, and largely agreed with Vladeck that detaining Saipov would probably accomplish more harm than good. He also noted that this week is a particularly controversial time to advocate for expanding Guantanamo’s use.
The Marine Corps general who oversees war court defense teams at the station was found guilty this week of contempt for disobeying orders by a military judge and sentenced to 21 days confinement.
“(Trump) seems totally oblivious to the fact that the military commission system, which has already faced many delays, is just this week suffering another meltdown, so the idea that Guantanamo — military commissions at Guantanamo — a form of swift justice, is badly mistaken,” Waxman said.
Both Trump and Obama, Waxman said, may have overestimated political support for their desired goal with Gitmo.
“I think they’re both going to face realities that they weren’t anticipating,” he said.
In the meantime, the Guantanamo Bay limbo is likely to carry on.
“I expect Guantanamo to continue looking a lot like it does now,” Waxman said. “Especially absent a new Authorization of the Use of Military Force from Congress, I don’t expect many new detainees to be sent to Guantanamo, I don’t expect military commissions to run smoothly in prosecuting detainees who are there, (and) I don’t expect many detainees to be transferred from Guantanamo. I think for the foreseeable future, Guantanamo will look like it does now.”