On January 30, President Donald Trump issued an executive order instructing the Secretary of Defense to within 90 days, after consultation with the heads of other relevant agencies, “recommend policies to the President regarding the disposition of individuals captured in connection with an armed conflict, including policies governing transfer of individuals to U.S. Naval Station Guantánamo Bay.”
The 90 days was up on Monday, April 30. So what did Defense Secretary Jim Mattis recommend? So far, at least, his response has not been made public. But there’s a clear way he can make some progress on the conundrum of Guantánamo, and still follow the language and spirit of the president’s order.
There are 41 detainees remaining at the Guantánamo detention center. Fewer than ten have active cases in a military commission, where hearings are ongoing this week for the five alleged co-conspirators of the 9/11 attacks – more than 16 years after those attacks took place. What about the rest?
All relevant U.S. national security agencies, following careful reviews, determined that five of the detainees still remaining at Guantánamo could safely leave the prison and be transferred to other countries. Inexplicably, that’s never happened.
In ordering Secretary Mattis to “recommend policies to the President regarding the disposition of individuals captured in connection with an armed conflict,” including policies governing transfers to Guantanamo Bay, President Trump explained that the detention center’s operations “are continuing given that a number of the remaining individuals at the detention facility are being prosecuted in military commissions, while others must be detained to protect against continuing, significant threats to the security of the United States, as determined by periodic reviews.”
But President Trump made no reference to the five detainees determined not to pose a significant security threat, and therefore cleared for transfer. Some, like 45-year-old Toffiq al-Bihani, a Yemeni man born and raised in Saudi Arabia, where he has family and the government has agreed to accept him, have been stuck at Guantanamo despite having clearance to leave for more than eight years. That’s unconscionable.
Some of the cleared men are part of a mass petition filed in federal court claiming the U.S. government can no longer lawfully detain them without charge or trial more than a decade after they were captured, with no legitimate purpose. That’s particularly true for the five detainees whom the executive branch itself has already determined that there is no legitimate security purpose supporting their continued detention.
Significantly, President Trump’s executive order included this key phrase: “Nothing in this order shall prevent the Secretary of Defense from transferring any individual away from the U.S. Naval Station Guantánamo Bay when appropriate.”
The U.S. government has long claimed that the Guantánamo detainees are being held under the laws of war, which allows detention of combatants, at least in an international armed conflict between states, for the duration of hostilities. I, and many others, have argued the laws of war cannot possibly justify detention more than 16 years later, when the U.S. government is fighting a very different set of armed groups with different aims and in different countries. It’s not the same conflict.
Regardless, the continued detention of five men already slated for release from Guantánamo and resettlement elsewhere cannot be justified, even by the terms of the President’s Executive Order itself.
At the very least, Mattis should recommend that designated officials in the Defense and State departments be specifically tasked with effectuating their immediate transfer.