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The Guantanamo Bay Executive Order

By: Rachel Bauer

Guantanamo Bay will continue to stay open and active. On January 30, 2018, President Trump signed an Executive Order, revoking President Obama’s 2009 Executive Order that would have closed Guantanamo Bay. Due to this action, the Supreme Court must make a determination as to the application of the AUMF to ISIS, as the outcome will dictate whether new legislation will be required before the base will be able to receive new detainees under the Executive Order.

As of January 2017, only 41 detainees remained at the base. Questions surrounding the legality of detentions have been the focus of multiple habeas corpora and legal rights claims, and concerns regarding detainee treatment have been raised as well. In spite of this, the U.S. Supreme Court has continued to uphold the legality of the detentions, including those of U.S. citizens. In Hamdi v. Rumsfeld, the Supreme Court held that the detentions are legal so long as there is Congressional authorization. For the detainees at Guantanamo Bay, that authorization came in the form of the both the 2001 and 2002 Authorizations for the Use of Military Force, or the AUMF. The Hamdi court also noted that Article 118 of the Third Geneva Convention allows detention of prisoners for the duration of “active hostilities,” but does not allow the detention’s continuation after hostilities have ceased.

However, while the term active hostilities in this context lacks an explicit legal definition, it plays an important role in determining the duration for which an individual may be detained. It exists more in the policy realm and raises the question of what constitutes active hostilities, or, in the alternative, who determines the term’s definition. In then-President Obama’s Presidential Policy Guidance document (PPG), released in 2013, active hostilities appeared to require the evaluation of factors including the “scope and intensity of the fighting,” which resembles the non-international armed conflict requirements described in the Tadic case. While the PPG was a playbook for drone strikes, its contents give an indication as to the U.S. understanding of the term “active hostilities” in times of conflict.

At the time of the PPG, active hostilities were considered present in both Afghanistan and Iraq as the U.S. fought the Taliban and al-Qaeda. Therefore, detainees brought to Guantanamo Bay were transferred legally. However, U.S. priorities have since shifted from al-Qaeda to ISIS, raising two questions. First, whether the new Executive Order applies to the current detainees under the term “active hostilities.”

In 2013, ISIS was still an al-Qaeda affiliate and remained so until February 2014, when al-Qaeda officially denounced the splinter group. Over the following months, the U.S. sent approximately 300 additional troops to Iraq to combat the organization, signaling a change in U.S. priority. Geographically, the conflict shifted as well, with fighting taking place predominantly in Iraq, Syria, and Africa rather than Afghanistan. These changes bring to the forefront the need to determine whether the hostilities against ISIS are the same as those against the Taliban and al-Qaeda. If the U.S. is no longer engaged in the same hostilities as in 2013 and is no longer fighting the same enemy, then the new Executive Order may have little impact on the remaining 41 detainees. Under the Geneva Conventions and Hamdi, the legal basis for the detentions would no longer exist, and whether the detention center remains open would be of concern only as long as detainees required housing until transfer back to their home countries. Only if there were new detainees would the Order have further impact.

Secondly, whether ISIS is an organization covered under the AUMF is up for debate. Despite the ambiguity, President Trump’s Executive Order lists the organization as a group whose fighters may be transferred to Guantanamo Bay. Whether the AUMF covers ISIS is dependent upon the outcome of Doe v. Mattis. Should the current AUMF be found legally applicable to ISIS, then new detainees may be sent to the base, and the status quo may continue. However, if the Court finds the AUMF inapplicable to the organization, then there is no legal basis for sending detainees to Guantanamo because no Congressional authorization will exist.

Whether this new Executive Order actually changes U.S. policy is dependent upon the resolution of legal questions which until recently have been left unanswered by Congress and the Court. In order for President Trump’s Order to extend to its full capacity, a determination will have to be made whether the President can determine what constitutes “active hostilities,” and the Court in Doe v. Mattis will have to find that the current AUMF applies to ISIS. Until these questions of law are answered, this Executive Order amounts to nothing more than a policy change.


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