So far the U.S. military’s aerial offensive in Iraq and Syria has killed, not captured suspected insurgents. But if a regional ally were to turn over Islamic State or Khorasan fighters to the United States, the White House has no intention of holding them at Guantánamo Bay, the prison the president keeps promising to close.
“This administration has not added a single person to the Guantánamo population since President Obama took office and we don’t intend to,” White House spokeswoman Caitlin Hayden said Wednesday.
Where they’d be held, however, and whether they’d be tried as alleged war criminals is an open question.
At Guantánamo, where a Pentagon staff of about 2,200 is holding 149 captives — half cleared for transfer, the prison would not say Wednesday whether it was on standby for Islamic State or other Syrian prisoners. “I don’t have anything for you on your question,” says Navy Capt. Tom Gresback, a prison spokesman.
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The last prisoner got to Guantánamo in March 2008. He’s an Afghani who before that was held by the CIA, and he has never been charged with a crime.
Then Obama came to office, ordered his administration to close it and imposed a moratorium on new arrivals.
Now the administration is waging a new campaign — though still early — almost straight from the Israeli playbook: Long range, take-no-prisoner airstrikes, which are described as surgical and meant to disrupt and destroy suspect enemy infrastructure.
At the Pentagon, the Detainee Affairs division has been researching a reporter’s question this week on what would be the status of a captive from the Islamic State. Privately, administration officials say a White House decision to forbid “boots on the ground” makes the possibility of taking prisoners remote.
“As you know, the United States military is not engaging ISIL or Khorasan on the ground,” said Hayden, the White House National Security Council spokeswoman.
But the argument overlooks a key fact of war-on-terror history: Many of the 799 men brought to Guantánamo weren’t scooped up by U.S. troops on the ground. They were handed over by regional allies, Muslim forces.
Meantime, the new Islamic State threat, says Cully Stimson, who ran Defense Department Detainee Affairs for Bush, both complicates the Guantánamo closure issue and raises the question of where to hold new war-on-terror captives — on a U.S. Navy ship or in theater?
“The threat of ISIS, the threat of ISIS fighters coming to the United States or affecting U.S. or ally interests makes it more difficult for the administration to close Guantánamo,” he said.
Obama is pursuing the air campaign under the Authorization for Use of Military Force against al-Qaida adopted by Congress, the same authority that the Pentagon prosecutor invokes in pursuing war court cases. The law governing military commissions at the court George W. Bush established and Barack Obama reformed doesn’t restrict that work to the Guantánamo detainee population.
In fact, in May 2013, Obama ordered the Defense Department to establish a place on U.S. soil to hold military commissions — something Congress has blocked for Guantánamo captives, but theoretically could be used to try other war prisoners held by the U.S. elsewhere.
For his part, Army Brig. Gen. Mark Martins wouldn’t speculate recently on whether Islamic State captives could be subject to trial by military commissions.
But a Pentagon spokesman appeared not to rule it out. Army Lt. Col. Myles Caggins III said the job of the Pentagon war crimes prosecutor “includes continual assessment of whether individuals who may be non-citizen unprivileged enemy belligerents can be proved by competent, admissible evidence to have committed an offense triable by military commission.”
So far, the administration hasn’t exercised that option and instead brought terror suspects to federal court for trial, mostly ending in swift plea agreements and long sentences. In two instances, the administration interrogated those suspects at sea, then charged them with federal crimes.