Jurisprudence

Gitmo Is Not the Answer

The thorny problem of what to do with ISIS detainees.

Lights shine from a marina at the U.S. Naval Station at Guantanamo Bay on Oct. 23, 2016.
Lights shine from a marina at the U.S. Naval Station at Guantanamo Bay on Oct. 23, 2016.
John Moore/Getty Images

The Trump administration is reportedly facing thorny challenges in weighing exactly what to do with the hundreds of Islamic State of Iraq and Syria detainees held in northern Syria by the U.S. government’s Kurdish-led partners, known as the Syrian Democratic Forces. This policy predicament, of course, was inevitable. Several hundred ISIS detainees cannot simply be released into the still-simmering conflict in Iraq and Syria; nor is detention by the SDF, a non-state armed group in Bashar al-Assad’s Syria, a long-term solution. To make matters harder, although many are foreign fighters, their home countries have been wary of taking them back.

What’s new this week is a report by NBC News indicating that the administration is considering sending a small number of them to Guantanamo Bay—including two men alleged to have killed American hostages, Alexanda Kotey and El Shafee Elsheikh—and transferring the remainder to a detention site in Iraq, at least until longer-term dispositions can be arranged. While there are real challenges and difficult trade-offs to be made, one question should not be difficult at all: Nobody should be sent to Guantanamo. It would be bad policy fraught with legal risk, and it would send a terrible message to both our allies and our adversaries, dampening an otherwise encouraging record of progress against ISIS.

There is no shortage of reasons that sending ISIS detainees to Guantanamo Bay would be a horrible policy choice. First, it likely would preclude their trial in our effective, time-tested federal civilian courts, where more than 660 terrorists have been convicted since 9/11. This is because Congress has made transfer to Guantanamo essentially a one-way trip. Statutory restrictions bar sending Guantanamo detainees to the United States in all circumstances, including for trial in federal court. And unless legally compelled to do so (as in a recent case), the Trump administration has opposed transferring detainees to their home nations or third countries. That means Guantanamo cannot even serve as a way station en route to prosecution of detainees in their home countries or the United States: it is a stark alternative to it.

This is why close observers know that Sen. Lindsey Graham’s recent suggestion that terrorist suspects could be transferred to Guantanamo and then prosecuted in federal civilian court is so disingenuous. Beginning in the immediate wake of 9/11 and even more so with Congress’s imposition of statutory transfer restrictions designed to prevent President Obama from closing it, detention at Guantanamo has been intended to be something of a black hole. Graham, a former judge advocate general who has long focused on detention policy, knows it. Graham and his colleagues should lift the restrictions on detainee transfers if they want his recent proposal to be taken seriously.

Second, if sending any ISIS detainees to Guantanamo is a bad idea, sending the two alleged to have killed American hostages is a horrendous proposition. As two of us recently wrote, “sending these two to Guantanamo wouldn’t be smart and it wouldn’t be just—it would at a minimum be justice delayed, and more likely justice denied.” That’s because the transfer restrictions mean the only way to seek justice for detainees at Guantanamo is in the military commissions held there, which have been an abysmal failure and are now in full meltdown mode. To date, the commissions have secured only a handful of convictions, with several overturned on appeal. The highest-profile cases have dragged on with no end in sight: After six years, the commission focused on the alleged perpetrators of 9/11 has yet to set a trial date, and the commission focused on an accused mastermind of the USS Cole attack has been delayed indefinitely. They are also expensive because of the millions of dollars per year it costs to hold a detainee at Guantanamo (compared with the approximately $86,000 annual cost of holding a convicted prisoner at the “Supermax” federal facility), as well as the inordinate expenses of shuttling military judges, lawyers, and commission staff back and forth to Guantanamo.

The Trump administration should also take seriously the strong preference expressed by the families of those murdered by ISIS to see the alleged perpetrators tried in federal civilian court. That preference is grounded in a dual desire to achieve justice for all the world to see and to deny ISIS the propaganda win it would achieve by having its operatives sent to Guantanamo, with all of its connotations and imagery—imagery that those very operatives utilized in dressing their victims in orange jumpsuits.

Third, the executive branch could face significant litigation risk if it sends ISIS detainees to Guantanamo, where they would have the right to challenge their detention in federal civilian court. To date, both the Obama and Trump administrations have argued that the domestic legal basis for using force against ISIS is provided by a combination of the 2001 Authorization for Use of Military Force (AUMF), passed in the immediate aftermath of 9/11 and aimed at authorizing force against al-Qaida and the Taliban, and the 2002 AUMF for the war against Saddam Hussein. With the notable exception of the ongoing John Doe v. Mattis litigation, involving an American dual-national detainee in U.S. custody, the government has avoided litigation that could jeopardize its theory that existing AUMFs cover the war against ISIS—a loss in court could undermine the legal basis for the entire continuing military effort in Iraq and Syria and elsewhere. The Doe litigation may sidestep a decision on the merits, but litigation begun by a petition for release brought by an ISIS detainee held at Guantanamo might not. And given the current political climate in Congress, the administration would surely not want to count on rapid passage of a new AUMF if it wants to sustain its ongoing counter-ISIS operations.

Finally, with 40 detainees currently at Guantanamo, the Bush and Obama administrations clearly made progress toward closing the facility, which has held roughly 780 detainees. But until it is fully shuttered, the world will continue to see Guantanamo as tainted—a symbol of lawlessness and abuse. Not only rejecting a policy of closure but adding new detainees would imperil cooperation from U.S. partners, which has been and must remain central to our counterterrorism strategy.

So, what should be done instead? The clear arguments against sending detainees to Guantanamo do not solve the genuinely hard question of how to achieve appropriate dispositions for ISIL detainees held by the SDF in Syria. The U.S. government is reportedly “still searching for a solution,” which could entail “holding the detainees in Iraq as a transit point” so that their home countries need not “enter Syria to collect them.” As the State Department’s first special envoy for Guantanamo closure, Dan Fried, said earlier this week, that particular idea “doesn’t sound wacky,” so long as humane treatment in Iraq can be ensured (no small task) and sufficient resources are committed to the onward transfer of non-Iraqi nationals.

Regardless of whether they are first transferred to Iraq, Fried is right that serious resources must be committed to matching this serious set of problems. Those commitments begin at the site of the conflict: The U.S. government should be stepping up its efforts to assist its partners in Syria and Iraq to ensure that detention facilities meet humane treatment standards and are capable of addressing any continuing threat posed by ISIS detainees, rather than—as seems to be the Trump administration’s inclination—stepping back. Alongside robust engagement by military and diplomatic professionals, this would likely involve providing financial assistance and training. It also means working to ensure the International Committee of the Red Cross has access to all detainees and is able to carry out its vital mandate of securing humane treatment in accordance with international humanitarian law.

The challenges continue beyond the battlefield itself. Despite its inclination to avoid coordination by the National Security Council and instead to push decision-making authority out to departments and agencies, if it is to meet this challenge the Trump administration must establish a functioning interagency process that draws on the expertise and resources of the Departments of State, Defense, and Justice, as well as the intelligence community.
A sound interagency process is required to sort out the legal and policy dimensions of disposition options, including possible prosecution or transfers to third countries, to ensure humane treatment, and to assist partners who may lack capacity to handle returned detainees.

Finally, a dismaying detail in the NBC story was the revelation that the administration has approached nearly four-dozen countries, asking them to take custody of their nationals currently being held in Syria. According to NBC, these countries all initially failed to accept their nationals, and since then, the reaction has been “mixed.” This is, simply put, unacceptable.

The conflict against ISIS is a transnational challenge, and a sizable number of the tens of thousands of those who have gone to fight with ISIS came from our partner nations in Europe and the Middle East. In some cases, these nations have stripped ISIS fighters of their citizenship, as the U.K. did with Kotey and Elsheikh, in what may be in part an attempt to wash their hands of the responsibility of dealing with these individuals. The secretary of state should designate a senior official to lead a diplomatic push for repatriations. For detainees who would not be safe in their home countries, the United States must undertake serious diplomatic efforts to transfer them to third countries for resettlement—as Fried and his successors, supported by a robust interagency process, were able to do for Guantanamo detainees who could not be repatriated home.

As the conflicts in Iraq and Afghanistan have evolved over nearly 17 years, detention of those captured on the battlefield has remained a constant challenge. But one thing has long been clear: Guantanamo is not the answer. There is no silver bullet. Getting this right demands sustained high-level prioritization, close interagency coordination, significant resources, and an engaged Congress. Getting it wrong invites a self-inflicted blow to the United States and an amplification of the threat posed by ISIS and other terrorist groups.