Thanks to Donald Trump’s latest executive order, there is likely to come a day over the next three years when a man in a jumpsuit, secured by shackles around his wrists, ankles, and waist, enters the detention complex at Guantanamo Bay. While it will seem like he is a captive of the vast power of the U.S. military, he will have the U.S. right where he wants it. He will be in position to blow up the entire legal framework supporting the U.S. war against the Islamic State.
That’s because the man will be accused of being a member of ISIS—or, more accurately, the government will assert that he is, rather than formally accusing him in an indictment he can contest. Once the administration captures an ISIS detainee and opts to hold him in Guantanamo as an enemy combatant, rather than transferring him to a civilian court for trial, he has the right, affirmed by the Supreme Court, to challenge his detention in federal court. Doing so will immediately put the war against ISIS on trial, because he will argue that there is no law in place making it legal to detain him.
National-security attorneys who have overseen thorny detention issues for previous administrations say that there are credible reasons to fear that he will succeed. Opposite them are aggressive lawyers who argue habeas corpus cases for Guantanamo detainees and who see a new shot at striking a blow to the U.S.’ indefinite detention apparatus. They agree on one thing: it’s better for the Trump administration not to bother refilling Guantanamo with, in Trump’s phrase, bad dudes.
In short, Guantanamo Bay is no longer the “recruiting tool” Barack Obama used to cite as an argument for closing its doors. It is now, through the courts, a weapon in ISIS’ hands to plunge the war against it into chaos.
“To bring new detainees associated with ISIS to Guantanamo would be to essentially acquiesce in putting before a federal judge our whole theory of the case,” said Joshua Geltzer, who was a senior counterterrorism official at the National Security Council and Justice Department in the Obama administration.
“Transferring ISIS detainees to Guantanamo will give lawyers like me exactly what we’ve been waiting for and looking for for the last several years,” said Wells Dixon of the Center for Constitutional Rights, “which is standing to go to court and to challenge the legal basis for all US military operations against ISIS worldwide.”
The argument an ISIS detainee’s lawyer will bring is easy to predict and looks like this. Wartime detentions require a legal predication establishing hostilities between the two parties. Like the Obama administration before it, the Trump administration relies for the war against ISIS on the 2001 congressional Authorization to Use Military Force (AUMF), passed after 9/11.
That authorization predates the creation of ISIS by over a decade—and even predates the existence of the terrorist group ISIS emerged from, al Qaeda in Iraq. Accordingly, the legal basis for detaining this man does not authorize military action against the group he purportedly aided—nor can, through a 2011 defense law, ISIS be snuck through as an “associated force” aiding an al Qaeda it has actively fought.
Therefore, the argument will go, his military detention is baseless and he must be freed. If a judge agrees, the argument will apply to every ISIS detainee in military custody.
Political inertia keeps the ISIS war legally dependent on the AUMF. Obama opted against seeking a new legal authorization for ISIS, and Republicans did not substantially complain. The Trump administration opted this summer to stick with the AUMF, to minimal Democratic condemnation.
That balance is a political one, not a legal one, and can remain durable—so long as there isn’t someone directly impacted by it who can bring it to a judge for a challenge. As soon as an ISIS detainee is in U.S. military custody, all that changes. A judge who rules in a detainee’s favor would be effectively saying, absent creative lawyering, that the U.S. war against ISIS has no legal basis—something that applies to every ISIS detainee in military custody. And that’s just for starters. A cascading effect of political and military consequences would result. Would troops ordered to attack ISIS be implementing a lawful order?
Geltzer “feels confident in our domestic law theory of [the] counter-ISIS” campaign, he said, but putting an ISIS detainee in position to file a habeas lawsuit “runs totally counter to caution.”
The Trump administration is already in this position in a slightly different context. In September, as The Daily Beast first reported, the military began detaining an anonymous U.S. citizen as an enemy combatant. (He is held in Iraq, not Guantanamo Bay.) The ACLU has filed a habeas petition for his charge or release. The extreme stakes for the ISIS war posed by a case now known as Doe v. Mattis helps explain why the Trump administration has fought tenaciously—though, now, unsuccessfully—to prevent a federal judge from hearing the merits of the detention.
But now Trump has swung Guantanamo’s gates open—and with them, the prospect of expanded legal challenges. His executive order, signed Tuesday night and announced in the State of the Union address, formally revokes Obama’s never-fulfilled Guantanamo closure instruction. It stops short of instructing the Pentagon to bring new captures into Guantanamo, saying instead the U.S. “may transport additional detainees” there. It is now up to Defense Secretary James Mattis, in consultation with his cabinet colleagues, to formulate an administration-wide detainee policy.
It’s worth adding that none of this applies to al Qaeda detainees, who are clearly subject to detention under the AUMF. As for ISIS detainees, the administration has an option available to it that poses no legal risk to the broader war it’s waging. They can charge ISIS suspects in custody in federal court under a host of terrorism statutes.
But Guantanamo Bay and the broader practice of holding terror suspects as enemy combatants—a term disfavored by Obama—are no longer just policy choices. They’ve metastasized into cultural issues on the right, complete with virtue-signaling. Mitt Romney in 2008 pledged to “double Guantanamo” as a way of convincing the right to give him the GOP presidential nomination. “Terrorists are not merely criminals, they are unlawful enemy combatants,” Trump said last night to lusty Republican applause.
“Guantanamo seems to have taken on some strange symbolic value to this president and this attorney general,” Geltzer observed. “It’s detrimental to national security, but fits a domestic narrative on national security.”