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“Gone” Yesterday and Here Today: The Status of Guantánamo Bay

April 4, 2018 – CSPS Student Fellow Mary Frances Woods examines how the Trump Administration’s policy regarding the use of the Guantánamo Bay detention facility differs in practice from the policy of his predecessor.

Mary Frances Woods

April 4, 2018

As with any transition to a new presidential administration, there come many changes. The status of the detention facilities in Guantánamo Bay, Cuba (Guantánamo Bay) is no exception. Throughout his time in office, President Barack Obama conveyed his intent to close Guantánamo Bay and made substantial efforts in achieving that objective. However, in his first State of the Union address, President Donald Trump appears to depart from that approach. Specifically, he announced that he “… just signed an order directing Secretary Mattis to reexamine our military detention policy and to keep open the detention facilities at Guantánamo Bay.”

The order to which President Trump was likely referring is Executive Order 13823 (E.O.), “Protecting America through Lawful Detention of Terrorists,” signed in January 2018. E.O. 13823 states, in part, that the Secretary of Defense shall, “recommend policies to the President regarding the disposition of individuals captured in connection with an armed conflict, including policies governing the transfer of individuals to U.S. Naval Station Guantánamo Bay.” E.O. 13823 further states that, “the United States may transport additional detainees to U.S. Naval Station Guantánamo Bay when lawful and necessary to protect the Nation.”

Although it would appear President Trump’s contemplation of new detentions is a substantial departure from President Obama’s policy, that may not necessarily be the case. In early 2016, President Obama announced that the Department of Defense was providing Congress with a plan to close “Guantánamo once and for all.” The “Plan for Closing the Guantánamo Bay Detention Facility,” proposed, amongst other things, a detailed process on how the United States disposition the remaining detainees, including 1) transfer to a different country; 2) prosecution in military commissions; and 3) continued law of war detention.

However, President Obama’s 2016 plan did not seem to exclude the possibility of future detentions. Specifically, the section, “Disposition of Future Detainees” stated, in pertinent part: “The Administration approaches new captures on a case-by-case basis with a range of options, including prosecution in the military commission system or in Federal court; transfer to another country…; or law of war detention, in appropriate cases.” President Obama’s plan also suggested that current detainees designated for continued law of war detention could be transferred to facilities in the United States, “should Congress lift the ban” on such transfers.

As a result, it could be interpreted that under President Obama’s plan, if appropriate facilities were developed within the United States, new detentions could be contemplated. For example, the plan indicated that “the Department of Defense determined that, with modifications, a variety of Department of Defense, Bureau of Prisons, and state prison facilities could safely, securely, and humanely house Guantanamo detainees for the purpose of military commissions and continued law of war detention.” Therefore, in comparison, President Trump’s ostensible contemplation of future detentions is not necessarily in opposition to President Obama’s policy, except for the detention location.

Additionally, one other important aspect of E.O. 13823 is that it apparently retains the process for determining the disposition of detainees as identified in Executive Order 13492, “Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities,” that President Obama issued in January 2009. E.O. 13823 further states, in part, that, “any detainees transferred to…Guantánamo Bay after the date of this order shall be subject to procedures for periodic review established in Executive Order 13567…to determine whether continued law of war detention is necessary to protect against a significant threat to the security of the United States.” Issued by President Obama in 2011, Executive Order 13567, “Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force” identified a process for periodic review of those detainees “(i) designated for continued law of war detention; or (ii) referred for prosecution.” Therefore, although President Trump has indicated that Guantánamo Bay will remain open, many of the processes for periodic review and detainee disposition enacted by President Obama remain in effect.

In conclusion, although President Trump’s decision to keep Guantánamo Bay open and the possibility for future detentions may appear to be a departure from President Obama’s policy, as discussed above, the issue is very nuanced and complex. As a result, since the current United States policy on detentions is under review, the implications of future detentions at Guantánamo Bay remains uncertain.

Mary Frances Woods is a part-time graduate student in the International Security Master’s degree program at George Mason University’s Schar School of Policy and Government. She holds a Juris Doctor from the Duquesne University School of Law and a bachelor’s degree in political science from North Carolina State University. She currently works as an attorney with the federal government but began her federal career as a security specialist. She is serving as a Student Fellow in a personal capacity and her personal research interests include various legal issues pertaining to international security and intelligence matters.

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