On Wednesday, we received news from the New York Times of a revised draft Executive Order that would require the Secretary of Defense to “maintain and continue to use” Guantanamo Bay but wouldn’t preclude the defense secretary from using other facilities “available to the United States for the custody of military detainees.” These two options, using Guantanamo Bay and not using Guantanamo Bay, trigger serious questions about how the Trump administration intends to use detention operations in response to national security threats, and whether he’ll do so lawfully.    

The draft executive order is, however, sparse on details and doesn’t provide a lot of answers. But another place to look is last week’s raid in Yemen that the Navy’s SEAL Team 6 conducted with the support of forces from the United Arab Emirates.  In that raid, a firefight ensued, an Osprey rescue helicopter crashed, U.S. airstrikes were called in, and there were casualties on all sides, including the death of Chief Special Warfare Operator William “Ryan” Owens and the reported death of an eight-year-old girl.

But one question that has yet to be looked at in detail in the context of the Yemen raid is the issue of detention. This is reasonable as several media outlets reported that the U.S. forces didn’t take prisoners during the operation. However, the Trump administration (and certainly the military) should have planned for various contingencies, including potential detentions. [Update: Senator John McCain, who received a classified briefing on the raid on Tuesday, told NBC News: “My understanding of the parameters of the raid were, they wanted to capture individuals” (emphasis added).The military presumably would have wanted to gather intelligence from individuals captured during the raid. Other possible scenarios could have included surrendering fighters, wounded adversaries, and abled-bodied civilians thought to pose imperative security risks. Each of these eventualities would have implicated a variety of intricate legal rules with associated logistical consequences about what to do when someone enters your custody and care. In other words, it would have required advanced planning. There’s also a fair chance Yemen and the UAE would have asked the US: What happens if someone is captured?

The  New York Times story provides some clues. But the executive order is still in draft form and, even if it had been passed prior to the raid, it is very open-ended. All things considered, left  unanswered is the question of what was the detention plan for the Yemen raid. Here are several possible options that may have been on the table.

Short-Term Detention:  The United States might have anticipated it would take people into its custody for a brief period of time (i.e., a few hours or days), but planned to quickly let them go or planned to hand them over , for example, to the UAE forces it partnered with. This approach is akin to what U.S. forces recently did in Syria and Iraq under the Obama administration where the U.S. military has so far refused to engage in long-term detention. Under these circumstances, the United States might also have planned on requesting access to these transferred detainees for questioning, or to access the information gathered from these transferred detainees.

If this plan was in play during the Yemen raid, it’s worth inquiring into what bodies of international and domestic law, in the view of the administration, would have regulated the detainee’s capture, transfer, and access; what rights the United States intended to afford an individual in its custody regardless of the duration of detention; and what rules and procedures the United States intended to follow when transferring detainees to another country’s custody. This type of detention plan, if adopted, also invites concerns about secret short-term detention and using partner governments for proxy detention.

Long-Term Detention: Separate from, or in addition to, short-term detention, the United States might have anticipated it would take people into its custody for long-term detention, either after U.S. forces captured someone or if UAE forces handed someone over to U.S. forces. If this plan were in play, it raises questions not only about what bodies of law apply, which rights the United States intended to afford an individual in its custody, and how it intended to give effect to those rights, but it raises questions about where the Trump administration would have held a detainee, whether the administration will be transparent about such detention, and whether the detainee would be held on criminal charges. The draft Executive Order certainly sheds light on the possibility that Guantanamo Bay might have been an option but, as Paul Lekas explains, the order also leaves several questions unaddressed. As a cautionary tale: opening Guantanamo Bay to new detainees will be a significant moment in American history that will attract important legal and policy analysis and critiques. But this should not be done at the expense of downplaying the importance of other U.S. detention plans and operations, including in theater. For many years, this was the sad fate of Bagram Theater Internment Facility and other facilities in Afghanistan–which did not receive the attention they deserved.

Detention Avoidance: It’s also conceivable that the United States pre-arranged with its UAE partner forces that only UAE forces would capture people and take them into custody. Under this option, perhaps the United States would have planned to request access to those detained, or request access to the information the UAE gathered from those detained.  This plan, which attempts to avoid the mess of detention operations, might be easy to enter into a Word document, but raids often don’t unfold so neatly to allow partnered forces to decide who gets to detain whom.  And people you didn’t expect to capture might end up in your custody, even if only for brief moments. But even if everything went as planned and only the UAE was doing the capturing, there are important legal issues for the United States to consider.  For example, if U.S. forces provided perimeter security that enabled the UAE to capture someone, the United States might still be on a legal hook if the UAE violates that detainee’s rights.  This detention avoidance plan might also raise significant issues about proxy detention.

Finally, it’s not beyond the realm of possibility that certain senior members of the White House may have contemplated a take no prisoner policy out of ignorance or distain of the law. Equally deplorable statements have been made in the past, be it with regard to torture or promises to “take out” the family members of suspected terrorists. It’s a sad day that such statements even need to be seriously discussed and responded to.  Fortunately, there is no reason to believe that the U.S. military would have allowed for an operational plan that included a take no prisoners option.


Image: A security fence at Bagram Air Base, March 2, 2009 – Spencer Platt/Getty