John Bellinger III explains on Lawfare why the Guantanamo Bay facility should be closed:
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 does not authorize their detention because it is limited to the organizations responsible for the 9-11 attacks. 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.
I’m sure tired of seeing it as a political football rather than a sanely managed facility. John blames both Democrats and Republicans; I don’t care. It does more damage to our reputation than any positives it may bring to the table.
