The Trump White House is nearing completion of an order that would direct the Pentagon to bring future Islamic State group detainees to the Guantánamo Bay prison, despite warnings from national security officials and legal scholars that doing so risks undermining the effort to combat the group, according to administration officials and a draft executive order obtained by The New York Times.
White House officials have spelled out their thinking about a new detainee policy in an evolving series of drafts of an executive order being circulated among national security officials for comment. While previous versions have shown that the draft has undergone many changes — including dropping language about reviving CIA prisons — the plan to add Islamic State group detainees to the Guantánamo population has remained constant.
The latest version of the draft, which circulated this week, would direct Defense Secretary Jim Mattis to use Guantánamo to detain suspected members of “al-Qaida, the Taliban, and associated forces, including individuals and networks associated with the Islamic State.”
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The White House has kept similar language in the draft order despite warnings from career government national security officials that carrying out its plan would give federal judges an opportunity to reject the executive branch’s theory that the war against the Islamic State group is legal, even though Congress never explicitly authorized it.
The issue could arise when reviewing an inevitable habeas corpus lawsuit filed by an Islamic State group detainee, which would place the burden of proof on the U.S. to justify the detention.
The latest version drops language about reviving CIA prisons and references to revitalizing the use of the military commissions system at Guantánamo for prosecuting terrorism suspects.
The Obama administration first argued in late summer 2014 that the Islamic State group was part of the existing armed conflict that Congress authorized in 2001 against al-Qaida and the Taliban. But while the Islamic State group got its start as al-Qaida’s affiliate in Iraq a decade ago, that theory is disputed because the two groups later split and went to war with each other.
“It raises huge legal risks,” said Jack Goldsmith, a Harvard Law School professor and former senior Justice Department official in the Bush administration. “If a judge says the Sept. 11 authorization does not cover such a detention, it would not only make that detention unlawful, it would weaken the legal basis for the entire war against the Islamic State.”
Sean Spicer, the White House press secretary, did not respond to an email seeking comment on the issue.
The Times reported Feb. 4 that the White House had limited the draft order so that it focused on carrying out President Donald Trump’s vow to keep the Guantánamo prison open and use it for newly captured detainees. That draft of the order dropped the ideas of reopening CIA prisons and permitting interrogators to use harsher techniques than those now allowed in the Army Field Manual.
That report was based on accounts by people familiar with a version that circulated last week. But a new draft order circulated this week, “Protecting America Through Lawful Detention of Terrorist and Other Designated Enemy Elements,” includes some revisions. The latest version, unlike the previous one, explicitly revokes President Barack Obama’s January 2009 executive order directing the government to close the prison by January 2010, a deadline it failed to meet.
The Obama administration first argued in 2014 that ISIS was part of the existing armed conflict that Congress authorized in 2001. But while the Islamic State group got its start as al-Qaida’s affiliate in Iraq a decade ago, that theory is disputed because the two groups waged war on each other.
The revised text also dropped references to revitalizing the use of the military commissions system at Guantánamo for prosecuting terrorism suspects, and instead focused exclusively on detention policy — like its directive to use the prison to detain captured Islamic State group suspects without trial.
In the 2012 version of the annual National Defense Authorization Act, Congress bolstered the government’s power to imprison suspected members of al-Qaida, the Taliban and associated forces by authorizing such detentions without reference to the Sept. 11 attacks. But while it has provided funds for military operations against the Islamic State group, it has never explicitly authorized combat or detention operations against it.
In summer 2014, when the group swept out of Syria and began rapidly conquering swaths of Iraq, Obama launched a bombing campaign to curtail its advances. At the time, he put forth the theory that the group’s early ties to al-Qaida were sufficient to bring it under the Sept. 11 war authorization without new action from Congress.
Nevertheless, in 2015, the Obama administration asked Congress to enact an authorization for use of military force against the Islamic State group. Lawmakers disagreed about whether it should place limits on the use of ground forces or impose an expiration date, and Congress never acted on the proposal. Congress has continued to give no sign that it has the will or the consensus to explicitly authorize war on the Islamic State group.
Last year, an army captain sued Obama, arguing that the war was illegal because Congress had not authorized it. A U.S. District Court judge dismissed the lawsuit without ruling on the legal merits, saying the plaintiff lacked standing to bring the case.
But any Islamic State group detainee at Guantánamo would have legal standing to get a court to rule on the question of whether the group is legitimately part of the war against al-Qaida.
Ryan Goodman, a New York University law professor who worked at the Pentagon during the Obama administration, said were other reasons bringing an Islamic State group detainee to Guantánamo for indefinite detention, as opposed to prosecuting him in civilian court, might raise problems: Foreign allies, he said, might refuse to turn over prisoners or assist in detention operations if that was the administration’s goal.
But even if that turns out not to be the case, he said, the legal risks of bringing a suspected member of the Islamic State, sometimes referred to as ISIL, are “very serious.”
“If I were in the administration, I would advise that bringing ISIL fighters to Guantánamo raises too many legal risks,” he said, using an alternative name for the Islamic State group. “If a court finds the 2001 statute does not apply to ISIL because of the extraordinarily remote links between ISIL and the original al-Qaida, then it would put into legal jeopardy the executive branch’s basis for lethal operations as well as detention operations.”