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February 08, 2017

New Draft Executive Order: Bad on Guantanamo, Silent on Torture

This morning the New York Times released a draft executive order from the Trump Administration that calls for continued use of the detention facility at Guantanamo Bay, Cuba. The order explicitly authorizes future captures to be detained there, including “individuals and networks associated with the Islamic State.” Currently, only those allegedly associated with al Qaeda and the Taliban are held at Guantanamo.

An earlier draft of the executive order was circulated late last month and drew outrage from both sides of the aisle as well as military and intelligence professionals. Of particular concern were the order’s provisions authorizing a review that could lead to the reopening of CIA “black sites” and reinstating a George W. Bush-era executive order that permitted unlawful cruel treatment of detainees.

President Trump’s Defense Secretary James Mattis and CIA Director Mike Pompeo were apparently “blindsided” by the draft order. Mattis had reportedly warned the president against waterboarding and Pompeo, in his confirmation hearing, said he would “absolutely not” resume the CIA’s prior program of so-called “enhanced interrogation techniques.”

Today’s draft order contained no trace of the prior draft’s language on interrogation of terrorism suspects. This change drew praise from General Charles C. Krulak (ret.), who spearheaded a letter last month from 176 retired flag officers urging President Trump to reject torture and other cruel treatment. Krulak commented that the removal of language on CIA black sites and other interrogation practices was “an important signal that the administration has heard the call of national security experts, retired military leaders, interrogators, intelligence professionals, and members of Congress from both sides of the aisle, who agree that torture is illegal, immoral, and counterproductive.”

However, while the Trump Administration appears to have listened to the experts on torture, it has ignored them on Guantanamo. Today’s draft order declares, “It is in the interest of the United States to continue detention operations at Naval Station Guantanamo Bay.” National security leaders as well as and former government officials—including President George W. Bush and others who helped set up the prison—call for Guantanamo to be closed because of the harm it causes to U.S. interests.

Today General Michael R. Lehnert (Ret.), the first commanding officer of Guantanamo, discussed the prison’s damaging effect on U.S. national security. “Guantanamo stands as a symbol of lawlessness and abuse. Our enemies point to Guantanamo to bolster their propaganda and our allies continue to view it as an impediment to otherwise essential cooperation on counterterrorism matters,” he states.

General Lehnert said that instead of detaining terrorism suspects in Guantanamo, the United States should to look to the example of federal courts, which he noted “have a long record of capably handling international terrorism cases…in stark contrast to the inconsistent and ineffective performance of military commissions and indefinite detention at Guantanamo.”

While federal courts have successfully prosecuted over 550 people on terrorism-related offenses since 9/11, the Guantanamo military commissions have convicted only eight—and three of those have already been overturned. The case against the accused 9/11 plotters has been in pre-trial hearings for nearly five years and lawyers involved with the case estimate it will not begin until 2025.

Conversely, in 2014 Osama bin Laden’s son-in-law was convicted on terrorism charges one year after he was captured and is currently serving a life sentence in a U.S. prison.

Fortunately today’s draft executive order does not prohibit trying new captures in federal court. Nor does it bar transferring the 9/11 defendants or other Guantanamo detainees to face federal trial in the United States. But President Trump would need to work with Congress to reverse its ban on bringing detainees to the United States, even for trial.

At a cost of over $10 million per detainee per year for a prison and a beleaguered military commission system that cannot seem to bring the 9/11 defendants to trial, one thing is certain and might appeal to President Trump’s commercial sensibilities: Guantanamo is a bad deal.