President-elect Trump may need to work with Congress to pass a new war authorization if he plans to make good on his pledge to fill Guantanamo Bay with “some bad dudes.”
Trump will take office with about 30 detainees at the military prison in Cuba, with President Obama having failed to live up to his campaign promise to close the detention center. And Trump has said that the doors will stay open.
“This morning, I watched President Obama talking about Gitmo, right, Guantanamo Bay, which by the way, which by the way, we are keeping open. Which we are keeping open … and we’re gonna load it up with some bad dudes, believe me, we’re gonna load it up,” he said in February.
But Cully Stimson, a senior legal fellow at the Heritage Foundation who previously headed detainee-related panels at the Pentagon, said Congress likely will need to pass a new authorization for the use of military force, or AUMF, to detain members of the Islamic State at Gitmo.
“If you want to load up Gitmo with ‘bad dudes’ and those bad dudes are ISIS, you’re going to have to give serious thought to an ISIS-specific AUMF,” Stimson said.
Operations against the Islamic State are authorized by two war authorizations, one from 2001 that allows action against those groups involved in the Sept. 11, 2001, terrorist attacks, as well as action needed to prevent future terrorist attacks, and a separate authorization from 2002 that authorizes military action in Iraq. Analysts and members of Congress have questioned the legality of using those authorizations for the current conflict since the Islamic State did not exist in 2001 and many lawmakers who voted for the authorizations are no longer in Congress.
Because of that, Trump could put al Qaeda or Taliban detainees at Gitmo, but holding Islamic State operatives captive proves a much harder question.
“As a legal matter, if you took ISIS members to Guantanamo, would the 2001 AUMF even cover them?” Stimson said. “I think it is a question that they must answer and it’s a difficult question.”
The answer ultimately depends on whether Trump’s administration is willing to continue operating under Obama’s presumption that current operations are covered by former authorizations, according to Chris Anders, deputy director at the American Civil Liberties Union.
“That is still a legally untested theory, and one that a Trump administration may decide against adopting,” he said.
It’s not clear if Congress could pass a new war authorization. Obama sent over his draft in February 2015, but it has not made any progress because Republicans feel it ties the hands of the president while Democrats say it amounts to a blank check.
Obama has been racing to close Guantanamo Bay and has transferred 48 detainees this year, with more cleared for transfer before he leaves office in January.
Emptying the prison as much as possible drives up the cost per prisoner to more than $10 million annually, compared to just $35,000 per year at a federal maximum security prison, Anders said.
“I think the cost argument is real and it’s something that I think has been overshadowed for some members of Congress by partisanship on this issue, but once President Obama has left office, that partisanship issue is over,” Anders said.
But Stimson predicted that the cost argument is unlikely to motivate many in Congress who have been staunchly opposed to closing the detention center.
“I do not think given who is going to be left at Gitmo on Jan. 20 that the cost argument has any weight to Congress,” he said. “It may have weight to a few Republicans, but it’s going to get drowned out by other people who think argument is worthless.”
