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September 12, 2018

There Are Better Options for Detained ISIS Fighters than Guantanamo

By Joy Bagwell

According to recent reports, the Trump Administration is working to help the Syrian Democratic Forces (SDF) find a sustainable way to deal with the hundreds of alleged ISIS fighters in their custody. The worst option on the list is sending some to the U.S. detention facility in Guantanamo Bay.

As Tess Bridgeman, Joshua Geltzer, and Luke Hartig observed on Just Security, this would cause more problems than it would solve. It would create fuel for terrorist and insurgent groups that use the prison to bolster their propaganda and recruitment schemes, and will open a legal Pandora’s box given the lack of clear congressional authorization for using force against ISIS.

U.S. allies have also expressed concern about the prison’s compliance with international law and have refused to cooperate with intelligence sharing or extradition of terrorism suspects if they may be tried in the Guantanamo military commissions system. These allies should be interested in working with the United States to find a sustainable solution for these detainees before the SDF is no longer able to hold them. Rather than sending them to Guantanamo, one better option is to transfer them to third country allies, consistent with nonrefoulement legal obligations, for prosecution or continued detention.

Article III courts also offer a viable alternative to Guantanamo. Unlike the woefully inefficient military commissions system, which has concluded only eight cases—half of which have been fully or partially overturned—the U.S. federal court system has proven itself highly capable of handling terrorism cases. Federal courts have processed over 660 convictions since 9/11, while federal prisons safely and effectively hold over four hundred individuals convicted of terrorism-related offenses.

After years of bipartisan efforts to decrease the Guantanamo detainee population, transferring new ISIS detainees there now would be an enormous step backwards. No known detainees have been transferred there since 2008. Moreover, President Bush released over five hundred detainees, while President Obama transferred, repatriated, or resettled 197. As a result, the Guantanamo facilities, which once held over seven hundred people, now house only 40, 14 of which are either serving sentences or still awaiting trial in the military commissions.

For more details on an effective approach to detaining and prosecuting terrorism suspects, see our detention issue brief here.