On Wednesday morning, the New York Times published a revised draft of a proposed Executive Order (EO) concerning the detention of enemy combatants.  The draft EO reflects the Administration’s intent to engage in broader detention operations and to use the Guantanamo Bay detention facility (GTMO) to house future detainees.  As others have observed, the draft avoids mention of potential military commission prosecution or CIA-administered detention.

While bare, the draft EO does raise several questions and leaves others unanswered.  Jack Goldsmith and Ryan Goodman have noted the significant legal risk associated with bringing ISIL-affiliated individuals to GTMO.  The Obama administration maintained since 2014 that the 2001 AUMF applies to the use of force against ISIL. This position has been bolstered by Congressional action, including continuing appropriations for the counter-ISIL effort. The Trump administration is unlikely to diverge from those legal positions.

No court, however, has yet ruled on the propriety of the government’s reliance on the 2001 AUMF in the counter-ISIL effort.  The only legal challenge brought to date was dismissed on standing grounds. Future detainees whose primary affiliation is with ISIL will certainly challenge their detention through habeas petitions.  This will require the D.C. federal district court to rule on the merits of the administration’s domestic legal basis for the use of force against ISIL. A new, ISIL-specific AUMF could preempt such challenges but would raise other risks.

The draft EO also revokes EO 13492, which Obama issued on January 22, 2009.  EO 13492 is significant for two main reasons.  First, it directed the closure of GTMO and release or transfer of all remaining detainees within one year – which obviously did not occur.  Second, it established a framework for a merits review of the basis for detention of all individuals then held at GTMO.  A year later, an interagency task force produced a final report that recommended dispositions – transfer or release, hold for prosecution, hold in continued law of war detention, maintain in conditional detention – for each of the 240 detainees then housed at GTMO.

The salient point is that the draft EO contemplates no framework for determining the disposition of future detainees.  Its reference to a 30% recidivism rate (reengagement or suspected reengagement) suggests that the administration does not contemplate a disposition other than continued law of war detention.  (The 30% figure includes detainees transferred prior to 2009.  As of September 2016, the IC estimated that 5.6% of those transferred since 2009 had reengaged, with an additional 6.8% “suspected” of reengagement.)  That drafting choice may box in the administration should it ultimately have to grapple with appropriate dispositions for any future detainees.  (Likewise, while the draft EO does not affect the Periodic Review Board process established by EO 13567, it does not create a similar process to individuals captured and detained after January 22, 2009.)

While this version of the EO omits  text contemplating the use of military commissions for any future detainees, military commission prosecution remains a possibility.  Prosecution by an Article III court, however, would not be available to anyone brought to GTMO, since Section 1032 of the FY 2017 NDAA prohibits the use of funds, inter alia, to transfer any detainee to the United States.  For that matter, the administration would be precluded from transferring any detainee to the United States for further detention in a military or federal facility.

The delay or absence of a framework for appropriate disposition and review of future detainees could affect the United States’ ability to work with foreign partners in detention operations.  GTMO has been, and remains, a hot button issue in many countries despite the substantial improvement of conditions at the facility.  Those countries may not be inclined to turn over suspected terrorists if there is no assurance from the U.S. government that they will be held to account for war crimes and may be held indefinitely.  Moreover, certain partners may be concerned about the administration’s failure to explicitly invoke Common Article 3; the now-revoked EO 13492 made clear, as one of its assurances, that the United States would hold detainees in accordance with Common Article 3.

As the administration considers its detention strategy, it should bear in mind the propaganda value associated with GTMO.  While some have criticized the Obama administration’s oft-repeated concern that the mere existence of GTMO feeds into anti-American propaganda, it remains a fact that terrorist organizations, including ISIL, continue to invoke GTMO in recruiting material. The propaganda value of GTMO will undoubtedly increase should the facility take on a central role in the Trump administration’s counterterrorism efforts.

Finally, it bears noting that any expansion of GTMO will be expensive.  One year ago, the Obama administration reported that FY2015 costs to maintain the facility were $445 million, and that an additional $200 million would be required to maintain the facilities going forward.  The cost to U.S. taxpayers has likely decreased with the reduction of the detainee population in the past twelve months, but would increase again were the current administration to move in the other direction.  Already, as Carol Rosenberg has reported, costly maintenance projects to ensure appropriate housing of current detainees are underway.  We can anticipate that facilities will require additional construction or renovation to ensure that future detainees are housed in a humane manner. This is yet another factor the administration will need to consider in deciding how to draft the EO and how to implement it.


Image: U.S. Army Military Police escort a detainee to his cell January 11, 2002 – U.S. Navy/Getty Images News