Although it may be politically popular with some of the Administration’s supporters, it would be a mistake for the Trump Administration to try to repopulate Guantanamo with new detainees from the Islamic State or Al Qaida-affiliated groups, as President Trump and Attorney General Sessions have said they want to do. The Trump Administration should learn from the bitter legal and policy experiences of the Bush Administration: adding new detainees to Guantanamo will produce more (and more risky) lawsuits; difficult practical problems down the road as to what to do with the detainees; and unnecessary friction with allies. Guantanamo detainees have prevailed in numerous challenges to their detention in federal courts (including four cases before the Supreme Court). Any new ISIS detainees in Guantanamo would undoubtedly claim in habeas petitions that the 2001 AUMF detention does not authorize their detention. As Jack Goldsmith has pointed out, “it is easy to imagine a habeas court ruling that the President does not have the authority to detain a member of ISIL because the 2001 AUMF does not extend to ISIL.” And as I explained in my Lloyd Cutler lecture last fall, our allies are likely to cut back on intelligence, law enforcement, and military cooperation if they believe the United States is not acting consistent with international law and our shared democratic values.
President Trump and Attorney General Sessions should instead consider a “Nixon to China” policy of seeking legislation that would allow the President to close Guantanamo and transfer the remaining detainees to their own governments and to one or more military and/or federal detention facilities in the United States for continued detention and potential prosecution. It is highly unlikely that any detainee could escape from a maximum security prison in the United States. Although it is possible that detainees held in the United States could bring additional legal challenges to their detention, detainees have already been successful in legal challenges while detained in Guantanamo; it will be difficult for the remaining detainees who have not been cleared for release to persuade a federal court that they should be released or given immigration rights. President Trump, Attorney General Sessions, Secretaries Mattis and Kelly, CIA Director Pompeo and DNI-designate Coats should consult with the experienced lawyers and policy experts in their departments about the risks of costs and benefits of Guantanamo. They are likely to find that repopulating Guantanamo will produce more costs and risks than benefits and that it would be both preferable, and possible, to achieve President Bush’s goal of closing Guantanamo without compromising security.
The entire post is well worth a read--particularly the history on why the detention facility was created in the first place. You can read it here.
Again, by way of full disclosure, I represent one of the remaining detainees at Guantanamo.