Protecting America Through Lawful Detention of Terrorists

Overview

Preservation of Detention Practices: Executive Order 13823, issued on January 30, 2018, by President Donald Trump, primarily seeks to preserve and institutionalize the detention practices at the U.S. Naval Station Guantanamo Bay. This order marks a significant departure from the previous administration's intent to close the detention facility. The order explicitly revokes Executive Order 13492, which was signed by President Barack Obama to close the Guantanamo Bay detention facilities. By reaffirming the legality and necessity of the Guantanamo Bay detention operations, EO 13823 aims to maintain the status quo of keeping certain individuals detained indefinitely if they pose a significant threat to U.S. security.

Continuation of Lawful Detention: The order underscores the United States' right to detain individuals captured in armed conflicts, pursuant to the 2001 Authorization for Use of Military Force (AUMF) and other legal authorities. It recognizes the complex nature of contemporary threats posed by entities like Al-Qa'ida, the Taliban, and ISIS, affirming the need for ongoing detention operations. The order emphasizes the lawful, safe, and humane nature of these operations, aligning them with international laws, albeit without addressing criticisms about human rights records at the facility.

Institutionalization and Expansion: Significantly, EO 13823 not only halts the planned closure but also allows for the potential expansion of the facility's role in the U.S. military's counterterrorism efforts. It outlines the criteria under which new detainees could be transferred to Guantanamo and mandates a review of policies regarding the disposition of such individuals. In essence, this order represents a policy of institutionalizing the detention facility rather than phasing it out, reflecting a shift towards more robust counterterrorism detention measures. Additionally, it mandates consultations between the Department of Defense and other key departments to strategize on the future handling of detainees.

Strategic Repositioning: EO 13823 anchors its rationale in strategic repositioning against terrorist threats, positing the Guantanamo facilities as an asset for national security. This approach critiques previous attempts to dismantle the detention center as potentially neglectful of enduring threats and complex international security scenarios. The emphasis on lawful detention procedures aligns with efforts to consolidate a hardline stance on national security issues while addressing criticism of the previous administration’s softer approach to counterterrorism detainees.

National Security Emphasis: At its core, the executive order highlights national security priorities, portraying Guantanamo as an essential element of broader U.S. defense strategy in a landscape marred by asymmetrical threats. By framing ongoing detention operations as crucial for precluding reengagement in hostilities by former detainees, the administration seeks to project a narrative of vigilance and preparedness. This aligns with a broader theme of projecting strength and deterrence, consistent with the administration’s emphasis on assertive counterterrorism measures globally.

Legal and Policy Implications

Constitutional Authority: Executive Order 13823 relies on the presidential powers vested by the Constitution and the statutory framework provided by the AUMF. The order's legal grounding in existing war powers suggest an executive approach that consolidates authority to manage wartime detainees. By specifying the continuity of detention laws, it frames detention as both a justified and essential component of the United States' national defense strategy. This approach reaffirms the executive branch's autonomy in matters of war and national security, potentially setting a precedent for future policy direction.

Revocation and Reversal: The revocation of EO 13492 not only halts the trajectory towards closing Guantanamo but effectively reverses a decade of policy efforts aimed at judicial review and closure of the facility. While this ensures operational continuity, it also underscores a departure from policies aimed at reforming what had been perceived as an anomaly in the system of checks and balances. The implications include potential legal battles over the balance of executive power and the role of the judiciary in overseeing military detentions.

Policy Divergence: EO 13823 emphasizes a stark policy shift from diplomatic and judicial processes to military jurisdiction as a default mechanism for handling terrorism suspects. This shift redefines the interplay between domestic law enforcement and international counterterrorism efforts, potentially impacting how laws concerning detention, military commissions, and human rights are interpreted and applied. However, the order maintains provisions for periodic reviews, reflecting an attempt to balance security imperatives with due process concerns.

International Law Considerations: The order claims adherence to international law, but it has sparked debate about compliance with the Geneva Conventions and other human rights protocols. Legal experts have scrutinized the operations at Guantanamo, highlighting concerns over indefinite detention without trial, which could contravene international human rights standards. This calls into question the extent to which the order aligns with global norms and obligations under international law.

Policy Recommendations: By instructing the Secretary of Defense to formulate policy recommendations for detainee disposition, EO 13823 sets the stage for potential variances in approach based on executive discretion. It anticipates scenarios involving new captures without automatically resorting to U.S. courts or diplomatic resolutions, thereby reinforcing the military's primary role in counterterrorism actions. This reflects an executive prioritization of flexibility and control in addressing emergent threats, albeit with limited judicial oversight.

Who Benefits

Defensive Agencies: Primarily, the executive order benefits defense and intelligence agencies, which gain continued operational latitude when dealing with high-risk detainees. By maintaining and potentially expanding the role of Guantanamo, these agencies enhance their capacities to act swiftly in capturing, detaining, and interrogating suspects with perceived links to terrorism. The Department of Defense stands to benefit through sustained roles in managing international threats from designated detention centers.

Military Contractors and Security Services: Likewise, military contractors and private security firms could see benefits from ongoing detention operations. These entities, which have historically provided services and support to Guantanamo operations, may experience continued or increased demand for their services as detention operations are maintained or expanded.

Advocates of Hardline Counterterrorism: Proponents of aggressive counterterrorism tactics, including certain political groups and policymakers, benefit significantly as the executive order echoes their longstanding calls for robust detention strategies. This order serves as a policy win for those advocating for a tough stance against terrorism, reinforcing their efforts to prioritize national security over diplomatic and civil liberties concerns.

Allies in the War on Terror: Additionally, international partners engaged in the global fight against terrorism could benefit from intelligence sharing and joint operations stemming from a stable U.S. detention policy. By reaffirming the utility of Guantanamo as a detention site, EO 13823 facilitates international cooperative efforts in monitoring, capturing, and detaining figures involved in terrorism.

Political Entities with Strong Defense Agendas: The order serves as a policy affirmation for political entities and leaders prioritizing national defense agendas. By projecting firm policies on detainment and prosecution of terrorists, the executive order resonates with constituencies favoring stringent national security measures, potentially aiding politicians seeking electoral support through strong defense platforms.

Who Suffers

Detainees and Human Rights Advocates: The primary group adversely affected by this order includes detainees at Guantanamo who may face indefinite detention without trial. Human rights advocates and organizations have long opposed such detention practices, arguing that they violate human rights laws and underpin a system of justice characterized by uncertainty and a lack of transparency.

Legal Communities Focused on Civil Liberties: Legal communities and organizations dedicated to civil liberties may experience setbacks due to this executive order. Efforts to challenge indefinite detention and to promote judicial oversight of military commission proceedings are hampered by the administration's reinforcement of Guantanamo's operational role. The order represents a continuation of detention practices that many in the legal community have critiqued for undermining fundamental rights.

Diplomatic Efforts for Detainee Transfers: Diplomatically, countries engaged in negotiations or previous arrangements with the U.S. to accept former detainees could find their efforts thwarted. By reversing policy directions towards closure, the order complicates ongoing international diplomatic efforts to resolve the statuses of long-term detainees through transfers or releases.

Administration Critics and Political Opponents: Domestically, political opponents and critics of the administration who advocate for closing Guantanamo and improving international standing through human rights reforms are disadvantaged. EO 13823 serves as a rebuke to those advocating for integrating detainees into civilian judicial systems and pursuing alternate detention approaches that emphasize human rights considerations.

Communities Affected by War on Terror Implications: The broader implications of a reinforced Guantanamo include potential impacts on communities and countries affected by the residual elements of the war on terror. The executive order reinforces policies that perpetuate detention without trial, which may exacerbate sentiments of injustice and erode trust in U.S. strategies for addressing international conflicts involving terrorism.

Historical Context

Policy Reversal from Obama Era: Executive Order 13823 signifies a decisive policy shift from the Obama administration's approach to Guantanamo, which actively sought to close the facility. This order not only revokes previous intent but reflects the administration's priority to cement the facility's role in counterterrorism. The reversal underscores broader ideological divides concerning security policies and human rights.

Continuation of Post-9/11 Policies: EO 13823 can also be seen as an extension of post-9/11 measures adopted by the Bush administration, which initially established Guantanamo as a central detention site for terror suspects. By fortifying detention practices, the order perpetuates the narratives set after September 11th, which prioritized national security and preventive detention amidst evolving global terrorist threats.

Alignment with Trump Administration Themes: The order aligns with President Donald Trump's broader themes of prioritizing American security and taking a hardline stance on foreign threats. This executive action exemplifies the administration’s preference for strong, decisive policies perceived as dealing directly with terrorism and security threats, often irrespective of international criticisms concerning human rights or due process.

Criticism and Enduring Controversies: Historically, Guantanamo has been mired in controversies ranging from human rights abuses to legal and ethical debates surrounding indefinite detention. EO 13823 contributes to these enduring controversies, as it not only maintains but potentially extends practices that have drawn international censure and ongoing advocacy for humanitarian reforms.

Impact on International Relations: The order’s implications extend to foreign policy and international relations, particularly with nations involved in global counterterrorism efforts or hosting former detainees. By establishing a definitive policy stance, EO 13823 potentially adds layers of complexity to multilateral discussions on human rights, extraditions, and international law compliance, signaling potential U.S. unilateralism.

Potential Controversies or Challenges

Legal Disputes over Detention Authority: EO 13823 could face legal challenges concerning the extent of executive power in indefinite detention. Critics may contest the order’s alignment with existing U.S. law and constitutional guarantees, leading to potential judicial scrutiny over the legality and limits of detention under the AUMF and war powers.

Congressional Pushback on Guantanamo: Congress, which has historically been divided over Guantanamo, may respond with legislative measures to limit executive actions or redefine the facility's role. The order could lead to renewed debates and negotiations over funding allocations, oversight mechanisms, and legislative reforms addressing detainee treatment and facility operations.

Challenges in Military Commission Processes: The continuation and potential enhancements in military commissions' roles present ongoing disputes concerning due process and fair trial standards. Legal experts and human rights organizations could challenge the procedures, citing deficiencies in transparency, representation, and compliance with U.S. and international legal standards.

International Criticism and Human Rights Concerns: The order could exacerbate international criticism of U.S. detention practices, potentially impacting diplomatic relations and multilateral engagements. Concerns about human rights abuses and noncompliance with international law could emerge in forums like the United Nations, impacting the U.S.'s standing and negotiations on global security issues.

Advocacy and Civil Society Opposition: Civil society organizations and human rights advocates are likely to continue mounting opposition to the policies underscored by EO 13823. This could manifest through increased advocacy campaigns, legal actions, and international appeals, as these groups seek to hold the U.S. accountable for adherence to global human rights norms and protocols.