The detention facility at Guantanamo Bay is now formally set to receive new inmates for an indefinite stay, the Pentagon confirmed Wednesday.
In what amounts to a fulfilled campaign promise for Donald Trump, who had pledged to refill Guantanamo with “some bad dudes,” Defense Secretary Jim Mattis delivered a long-expected detentions policy to the White House, a day after the deadline set by Trump’s January executive order paving the way for new Guantanamo detainees.
“This policy provides our warfighters guidance on nominating detainees for transfer to Guantanamo detention should that person present a continuing, significant threat to the security of the United States,” said Navy Cdr. Sarah Higgins, the Pentagon’s detentions spokesperson.
Much remains unclear about the new policy, which neither the Pentagon nor the White House released. The criteria for determining the threshold for a detainee’s “continuing, significant threat” was not defined, nor was who within the chain of command will be empowered to recommend that decision. National Security Council representatives did not immediately respond to questions.
“‘Continuing, significant threat,’ while it might read as more narrow than previous [policies], the determination is largely going to be a subjective one rather than an objective one,” said Vince Warren, the executive director of the Center for Constitutional Rights. “It provides no more clarity and guidance for people implementing or challenging that policy than previous ones.”
As of Monday, Mattis had not seen any policy recommendation his subordinates had developed. “Right now, I’m not working that issue,” he told reporters earlier this week. But Mattis indicated his disinclination to return to the physical abuses that occurred at Guantanamo during Donald Rumsfeld’s tenure, saying he was “absolutely certain that there is not one thing going on down there that would not be in accordance with the international protocol—the Geneva protocol.
The U.S. military is not known to have detainees in custody in Iraq, Syria and Afghanistan, its primary warzones, outside of an anonymous American citizen captured in September and held in Iraq since as an enemy combatant. Yet on Tuesday, the State Department announced that the military had begun “operations to liberate the final ISIS strongholds in Syria,” heightening the prospect for U.S. troops to capture Islamic State fighters.
There were 41 men detained at Guantanamo at the time the Pentagon gave its new detentions policy to the White House, all of whom have been there for over a decade, the vestige of Barack Obama’s broken promise to shutter the facility. Under the Trump administration, the process for transferring detainees cleared by an interagency panel out of Guantanamo has ground to a halt. It is unclear if the new detentions policy will place any additional urgency on transfers or entrench the indefinite nature of Guantanamo captivity.
A 2008 Supreme Court ruling, Boumediene v. Bush, provides Guantanamo detainees with the right to challenge their detentions in federal court, but that so-called habeas corpus process has been a slog as well.
Similarly, the new detentions policy comes as Sens. Bob Corker (R-TN) and Tim Kaine (D-VA) have proposed a new legislative footing for continued U.S. wars against a host of terrorist groups. Their bill text contains no new language on detentions, but battlefield captures are traditionally considered an entailed aspect of military operations, meaning their bill would authorize detentions for members of ISIS—something arguably absent under existing authorities.
“This policy rips the lid open for refilling Guantanamo,” said Warren of the Center for Constitutional Rights.
“It has the same generalized deformities that previous policies have, leaving it to people on the ground to make determinations about dangerousness that will follow through another generation of detainees to fight the same legal battles as the previous generation.”
Hours after the new Guantanamo policy went to the White House, the Pentagon announced late Wednesday afternoon that it had transferred Ahmed Mohammed al-Darbi, the only detainee to have pleaded guilty in the military commissions, to Saudi Arabia. It’s the first detainee transfer of the Trump administration, and it brings the Guantanamo detainee population down to 40 men. For now.