Why Trump Is Keeping Gitmo Open. And It Has Little To Do With Terrorism

This article first appeared on Verdict.

During his State of the Union address last week, Donald Trump announced that he had “signed an order directing [Defense] Secretary Mattis to reexamine our military detention policy and to keep open the detention facilities at Guantánamo Bay.” The line was greeted by applause.

Why? Although nearly 800 men have been detained at Gitmo, as of late last year there were only 41. By one estimate, it costs US taxpayers over $10 million per year for each Gitmo detainee as compared with $78,000 per year to detain someone in a maximum security federal prison.

That is the cost in dollars, but the moral cost is immeasurably higher. In violation of international law and basic decency, many of the Guantánamo Bay detainees were tortured or held for years on the basis of flimsy evidence that they posed any danger.

Trump said in his State of the Union that the US has released some detainees who went on to commit additional acts of terrorism, which is true, but he made no mention of the people wrongly detained and subject to brutal mistreatment—men like Mohamedou Ould Slah, author of the searing Guantánamo Diary.

Nor did Trump take any account of the blowback caused by Gitmo. Al Qaeda, ISIS, and other terrorist organizations have pointed to Gitmo—along with the abuses at Abu Ghraib, CIA dark sites, and civilian casualties inflicted by the US in the wars since 9/11—as recruiting tools.

Given the very high cost of keeping Gitmo open, it is difficult to understand Trump’s decision in anything but symbolic terms.

Gitmo’s Raison d’Etre

The Bush administration’s initial decision to detain people captured on battlefields in Afghanistan and elsewhere at Guantánamo Bay had some legal logic behind it. The administration took the position that such detainees were not entitled to the protections of the Geneva Conventions due to prisoners of war, because they were “unlawful enemy combatants.”

Although that category was recognized by the Supreme Court in 1942 in the Nazi Saboteur Case, its status under international law was and remains highly dubious. Thus, President Bush’s legal advisers worried that if detainees in the post-9/11 conflicts could find their way into US courts, the policies of torture and indefinite detention would be invalidated.

GettyImages-92477338 A group of detainees kneels during an early morning Islamic prayer in their camp at the U.S. military prison for 'enemy combatants' on October 28, 2009 in Guantanamo Bay, Cuba. Although U.S. President Barack Obama pledged in his first executive order in January 2009 to close the prison within a year's time, the government has been struggling to try the accused terrorists and to transfer them out ahead of the deadline. Military officials at the prison point to improved living standards and state of the art medical treatment available to detainees, but the facility's international reputation remains tied to the 'enhanced interrogation techniques' such as waterboarding employed under the George W Bush administration. John Moore/Getty

Gitmo was their clever, albeit evil, solution to the problem of how to detain foreign fighters and suspected foreign terrorists without charge, while subjecting them to waterboarding and other forms of illegal torture that the administration euphemistically described as “enhanced interrogation.”

World War II–era cases indicated that non-citizens without strong ties to the US who were detained outside of the US were not entitled to sue in US courts. Holding and mistreating prisoners at Guantánamo Bay enabled the administration to act unlawfully but evade judicial review—and to do so barely 500 miles from southern Florida.

Unfortunately for the Bush administration, a series of Supreme Court rulings from 2004 through 2008 undercut the strategy of evading the courts. In Rasul v. Bush, the Court said that the habeas statute actually extended to foreign fighters and alleged foreign terrorists held at Guantánamo Bay.

Congress tried to reverse that result in the Detainee Treatment Act of 2005, but the Court then ruled in Hamdan v. Rumsfeld that the Act did not apply to prisoners who had already filed habeas petitions, which was nearly all of them. And, the Court added, the Geneva Conventions applied at Gitmo, rendering the Bush administration’s ad hoc military commissions unlawful.

Congress next clarified in the Military Commissions Act of 2006 that it really meant to strip courts of the authority to grant habeas petitions on behalf of foreign Gitmo detainees—even petitions already pending in court—but the Supreme Court once again stepped in, holding in Boumediene v. Bush that the jurisdiction stripping provision violated the Constitution’s Suspension Clause.

Meanwhile, the Bush and Obama administrations released most of the detainees after determinations that they were unlikely to return to the battlefield, especially if remanded to countries where they would be closely watched.

Some have so returned—just as ex-convicts released from prison based on parole determinations domestically sometimes commit additional crimes—but overall, the drastic decline in the prison population at Gitmo reflected the growing realization that the prison there had outlived its usefulness. Keeping it open no longer served the original purpose of evading judicial scrutiny, while the cost in dollars and reputation made it a losing proposition.

Gitmo’s Symbolic Significance

Accordingly, President Obama attempted to close the Gitmo prison. The plan was to release to foreign powers all of those detainees deemed low risk, while transferring remaining detainees to very secure facilities inside the US. Obama’s plan was stymied by Congress, however.

Part of the opposition to the plan to close Gitmo was understandable but misguided NIMBYism. Lawmakers did not want suspected terrorists who had been called “the worst of the worst” by the Bush administration housed in prisons in their respective states and districts, even if the chance of escape would be vanishingly small.

But the opposition to closing Gitmo was also tinged by the hyper-partisan opposition to Obama. Just as Republicans uniformly decried the Affordable Care Act—even though it was based on ideas originally developed by conservatives and first attempted in Massachusetts under Republican Governor Mitt Romney—so Republicans treated Obama’s plan to close Gitmo as tainted simply in virtue of the fact that it came from Obama, even though President Bush released more Gitmo detainees than President Obama did.

Opposition to closing Gitmo during the Obama presidency also jibed with the not-so-veiled racism of many Republicans who questioned Obama’s citizenship and commitment to the US.

In addition, at least since the 1960s, Republicans have generally tried to sell an image of their party as stronger on defense than the Democratic Party, and opposition to closing the Guantánamo Bay prison nicely fit that frame—even if the prison was and is in fact a national security liability.

Against that backdrop, it is easy to see why Trump thought it was good politics to commit to keeping Gitmo open. Although candidate Trump questioned the wisdom of some Bush administration policies, closing the prison now would be seen by Trump’s base as more of a vindication of Obama than a repudiation of Bush. That makes it a non-starter for Trump.

Trump came to office with few strong policy commitments beyond his decades-long racism. Accordingly, his agenda has largely consisted of repudiating Obama policies, whether on health insurance, taxes, the environment, or foreign policy. In some areas, of course, this was largely show.

For example, Trump’s one notable foreign policy success—the defeat of ISIS as a quasi-sovereign government—was built on a continuation of the Obama policy.

But because Gitmo is a highly visible symbol, it makes an attractive target for Trump. By keeping it open, he repudiates Obama and displays his toughness. That the decision is wasteful, immoral, and counterproductive is of little concern.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University and co-author, most recently, of Beating Hearts: Abortion and Animal Rights. He blogs at dorfonlaw.org .

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