Just a few days ago, we passed a forlorn milestone: six months of the presidency of Donald Trump. On every front, this first six months has been a disaster. Trump humiliates America on the international stage, and at home he continues to head a dysfunctional government, presiding by tweet, and with scandal swirling ever closer around him.
On Guantánamo, as we have repeatedly noted, he has done very little. His initial threats to send new prisoners there, and to revive CIA “black sites,” have not materialized. However, if he has not opened the door to new arrivals, he has certainly closed the door on the men still there.
These include, as Joshua A. Seltzer, the senior director for counterterrorism at the National Security Council from 2015 until Trump took office, wrote in “Is Closing Guantánamo Still Conceivable?,” a recent article for the Atlantic, “the five still held at Guantánamo despite being recommended for transfer.” He added, “This official designation refers to those still believed to be lawfully detained under the law of war, but unanimously recommended for repatriation or resettlement by an interagency group of career officials. In other words, their continued detention has been deemed unnecessary, assuming an appropriate country can be identified to accept them under conditions that ensure their humane treatment and address any lingering threat they might pose.”
Seltzer continued: “Trump has couched his refusal to continue with this process as part of his near-wholesale rejection of Obama and his presidency. His campaign pledge to fill the detention facility was preceded by a direct reference to his predecessor: ‘This morning, I watched President Obama talking about Gitmo,’ Trump began, before making clear that his desire to keep it open was diametrically opposed to Obama’s wish to close it.”
That was the speech in which Trump said of Guantánamo, “we’re gonna load it up with some bad dudes, believe me, we’re gonna load it up,” and, even after he took office, the wild rhetoric continued. In March, as we wrote about here, he tweeted an outrageous lie about Guantánamo — “122 vicious prisoners, released by the Obama Administration from Gitmo, have returned to the battlefield. Just another terrible decision!”
As we explained at the time, “That number, 122, was taken from a two-page ‘Summary of the Reengagement of Detainees Formerly Held at Guantánamo Bay, Cuba,’ issued by the Office of the Director of National Intelligence in July 2016. The summaries are issued twice a year, and, crucially, what Trump neglected to mention is that 113 of the 122 men referred to in that summary were released under President Bush, and just nine were released under President Obama. In the latest ODNI summary, just released, the total has been reduced to 121, with just eight men released under President Obama.” (We should add that, here at “Close Guantánamo,” we also dispute the figures compiled by the ODNI).
“Rebuking a bipartisan project”
However, what is important about Trump’s position is not just his stupidity, or his wholesale opposition to whatever position was taken by President Obama; it is also, as Seltzer explains, that it is in opposition to the settled, bipartisan view of almost the whole of the U.S. establishment.
As he puts it, “closing Gitmo isn’t just an Obama position.” George W. Bush, who opened it, “expressed support for shutting it down in 2006,” and “[b]oth candidates in the 2008 presidential election backed its closure … By breaking with longstanding efforts to repatriate or resettle detainees, Trump has refused to act on the recommendations of career national security professionals. He isn’t simply rejecting an Obama policy, as he claims. He is, instead, rebuking a bipartisan project.”
Seltzer’s sharp analysis continues: “Trump’s Guantánamo policy is a microcosm of his approach to so much, particularly in foreign affairs and national security policy. His reluctance to endorse America’s commitment to NATO’s collective self-defense (a reluctance he seems to have reversed recently), his similarly pointed efforts to rile its NAFTA partners without articulating a credible alternative, his seemingly concerted abnegation of American commitments to international partnerships and assumption of leadership in global affairs — he frames all of this as a rebuke of Obama’s purported ‘weakness and irresolution‘ when, in fact, it is a stark rejection of vital, bipartisan elements of America’s approach to world affairs. Trump’s foreign policy isn’t anti-Obama. It’s anti-everyone other than his own small and somewhat bizarrely oriented team of advisers.”
Seltzer proceeds to note that, worryingly, Trump’s position on Guantánamo “plays to the small streak of American political discourse that imbues the detention facility’s continued operation with inordinate symbolic value in the war on terror,” a “post-9/11 American toughness towards terrorism, and more specifically, a militarizing of that effort,” which, in turn, “represents an American commitment to ‘taking the gloves off‘ when it comes to counter terrorism and minimizing the legal rights afforded to terror suspects.”
As he describes it, “Never mind the federal courts’ well-established, successful track record of prosecuting terrorism suspects; those with an unwavering committment to the Guantánamo project embrace its symbolism, regardless of the history and facts.” He then cites Ed Meese, Attorney General under Ronald Reagan, from 1985-88, who suggested, on the 10th anniversary of the establishment of the Guantánamo prison (the very day that “Close Guantánamo” was established), that Guantánamo helps Americans “remember that the United States is engaged in armed conflict and has been since September 11, 2001.” As Seltzer puts it, “In Meese’s telling, the facility is a concrete reminder that the war on terror ‘would be different from all previous wars,'” an echo of the alarming position taken by the Bush administration, which continues to poison America’s commitment to the rule of law (including spurious justifications of Guantánamo’s continued existence).
Seltzer proceeds to note that the current Attorney General, Jeff Sessions, has been “[p]erhaps the single most consistently vocal supporter” of the Guantánamo project, pointing out that, “soon after being sworn in, [he] reaffirmed his longstanding view that Guantánamo is ‘a perfect place’ to send newly detained terrorism suspects.”
In Seltzer’s analysis, this is another example of Trump “indulging a fringe view of what threatens Americans and what keeps them safe,” echoing “his determination to take the legal fight over his anti-Muslim travel ban all the way to the Supreme Court, over strong indications from a range of former national security professionals that such a response simply isn’t responsive to today’s actual terrorist threats.” (Seltzer adds that he is one of those former national security professionals).
Moreover, Trump’s position is not merely bad domestic politics; it is also, as Seltzer adds, counterproductive. That is how the former officials describe the Muslim ban, and Seltzer also notes that his “experience as a White House counterterrorism official under Obama confirms others’ observations that continued detention at Guantánamo makes it harder for key partners to help America with real counterterrorism needs.”
In a key condemnation of Trump’s position, he notes, “This is playing politics with national security, not protecting it.”
Seltzer proceeds to concede that “neither of Trump’s predecessors pursued a headlong dash to close the facility,” adding that, under Obama, this was “sometimes to the frustration of those outside government for whom Guantánamo’s closure was an urgent moral issue, even if one that the reality of congressional politics would simply not allow.” That ignores, as we stated from when we first started campaigning in January 2012, the reality that a presidential waiver existed in the legalisation that Congress produced to tie Obama’s hands, which, sadly, he chose never to use.
Seltzer also writes of “a sometimes slow but justifiably cautious process for evaluating which detainees could be transferred and under what conditions, and then for pursuing such transfers.” He adds, “That was what our counterterrorism partners wanted to see from us: the journey, if not the destination. So long as those governments could tell themselves and their citizens that Washington was considering the transfer recommendations of career officials, Guantánamo generally didn’t represent a stumbling block to the type of cooperation on which counterterrorism inevitably relies.”
That latter point may well be true, but on the review process, Seltzer’s position ignores the layers of unjustifiably extreme caution that meant that men approved for ongoing imprisonment under Obama’s 2009 review process (the Guantánamo Review Task Force), when they were designated as being “too dangerous to release,” had to wait, in many cases, for another six or seven years until the second Obama review process, the Periodic Review Boards, decided that, after all, they were not too dangerous to release, and, in many cases, the supposed intelligence used to justify their ongoing imprisonment was hopelessly flawed.
In conclusion, Seltzer claims that, although “it’s easy to view [Guantánamo] as a place frozen in time,” it “remains a dynamic place. Reviews of detainees and the threat they may pose are ongoing, and those may yield additional recommendations for transfers beyond the five detainees already in that category. And, just last month, new military commissions charges were filed against a detainee, making him the 11th current detainee to be at some stage of military commissions proceedings.” As we noted in a recent article, however, the decision to charge alleged al-Qaeda terrorist Hambali in the military commissions is nothing to celebrate, as the system remains irreparably broken. As a Trump administration official told Spencer Ackerman of the Daily Beast, “This system doesn’t work.”
A federal court trial that punctures Trump’s rhetoric
Since Seltzer filed his article for publication, there has been a development that shows, more appropriately, Trump’s rhetoric being undermined by political reality. Despite his bombastic claims that he would bring new prisoners to Guantánamo, he has just “brought a man suspected of belonging to Al Qaeda to the United States to face trial in federal court, backing off [his] hard-line position that terrorism suspects should be sent to the naval prison in Guantánamo Bay, Cuba, rather than to civilian courtrooms,” as the New York Times put it.
The Times added, “The suspect, Ali Charaf Damache, a dual Algerian and Irish citizen, was transferred from Spain and appeared on Friday in federal court in Philadelphia, making him the first foreigner brought to the United States to face terrorism charges under President Trump,” also noting that he is a suspected recruiter for al-Qaeda, who “was charged with helping plot to kill a Swedish cartoonist who depicted the Prophet Muhammad in cartoons.”
The Times also noted, “With Mr. Damache’s transfer, Attorney General Jeff Sessions adopted a strategy that he vehemently opposed when it was carried out under President Barack Obama. Mr. Sessions said for years that terrorism suspects should be held and prosecuted at Guantánamo Bay. He has said that terrorists did not deserve the same legal rights as common criminals and that such trials were too dangerous to hold on American soil. But the once-outspoken Mr. Sessions was uncharacteristically quiet on Friday. He gave a speech one block away from the Philadelphia courthouse where Mr. Damache appeared and did not address the case.”
This is one commendable instance of reality intruding on Trump’s fantasy view of justice — echoing what happened with his enthusiasm for torture, when even his own appointees opposed him — but it remains clear that, in general, his approach to Guantánamo remains disastrous. As Seltzer notes, in closing, “another six months of Trump’s approach to Guantánamo will, whatever his rhetoric professes, leave the country less safe — not more.”
We cannot agree more.