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President Trump Issues Executive Order Keeping the Guantánamo Bay Detention Camp Open

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On January 30, 2018, President Trump signed Executive Order 13,823, directing officials to keep the Guantánamo Bay detention camp open and permitting additional detainees to be transported to the facility. In announcing his decision during the State of the Union address to Congress, Trump stated, “I am asking Congress to ensure that, in the fight against ISIS and Al Qaida, we continue to have all necessary power to detain terrorists … . And in many cases, for them, it will now be Guantánamo Bay.” Section 2 of the order provides:

  1. (a)Section 3 of Executive Order 13492 of January 22, 2009 …, ordering the closure of detention facilities at U.S. Naval Station Guantánamo Bay, is hereby revoked.
  2. (b)Detention operations at U.S. Naval Station Guantánamo Bay shall continue to be conducted consistent with all applicable United States and international law, including the Detainee Treatment Act of 2005.
  3. (c)In addition, the United States may transport additional detainees to U.S. Naval Station Guantánamo Bay when lawful and necessary to protect the Nation.

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1 Exec. Order No. 13,823, 83 Fed. Reg. 4831 (Jan. 30, 2018).

2 Donald J. Trump, Address Before a Joint Session of the Congress on the State of the Union, 2018 Daily Comp. Pres. Doc. 64 (Jan. 30, 2018).

3 Exec. Order No. 13,823, supra note 1, at 4831.

4 Exec. Order No. 13,492, 74 Fed. Reg. 4897 (Jan. 22, 2009).

5 Barack Obama, Remarks on Closing the Detention Facilities at the United States Naval Base in Guantánamo Bay, Cuba, 2016 Daily Comp. Pres. Doc. 94 (Feb. 23, 2016) [hereinafter Obama Remarks] (also noting that “15 years after 9/11, … we're still having to defend the existence of a facility and a process where not a single verdict has been reached in those attacks”).

6 Exec. Order No. 13,492, supra note 4, at 4898.

7 Obama Remarks, supra note 5 (noting that since the time of this executive order, “Congress has repeatedly imposed restrictions aimed at preventing us from closing this facility”).

8 Exec. Order No. 13,823, supra note 1.

9 Letter to Congressional Leaders on the Detention Facility at Guantánamo Bay, Cuba, 2017 Daily Comp. Pres. Doc. 56 (Jan. 19, 2017). At one point, the facility held approximately eight hundred detainees. See id.

10 Human Rights First, Guantánamo by the Numbers (Feb. 2018), available at https://www.humanrightsfirst.org/sites/default/files/gtmo-by-the-numbers.pdf.

11 Missy Ryan & Ellen Nakashima, Trump, Reversing 2009 Move, Vows to Keep Guantánamo Open Indefinitely, Wash. Post (Jan. 31, 2018), at https://www.washingtonpost.com/world/national-security/trump-revoking-2009-order-moves-to-keep-guantanamo-open-indefinitely/2018/01/30/c45a0b02-061b-11e8-8777-2a059f168dd2_story.html?utm_term=.4d1d3659f34e (noting that five have been approved for transfer); see also Charlie Savage, Stranded at Guantánamo, a Cooperative Detainee Criticizes Saudi Arabia, N.Y. Times (Feb. 28, 2018), at https://www.nytimes.com/2018/02/28/us/politics/guantanamo-detainee-saudi-arabia.html (noting that the terms of another detainee's plea agreement provided for transfer to Saudi Arabia by February 20, 2018, but that this transfer did not occur as scheduled).

12 Felicia Schwartz, Trump Signs Executive Order to Keep Guantánamo Bay Open, Wall St. J. (Jan. 30, 2018), at https://www.wsj.com/articles/trump-signs-executive-order-to-keep-guantanamo-bay-open-1517370533.

13 Exec. Order No. 13,823, supra note 1, at 4831. The periodic review process referred to is set out in Executive Order 13,567 from the Obama administration and applies to detainees subject to ongoing detention who have not been charged or convicted. See id. at 4831–32; Exec. Order No. 13,567, 76 Fed. Reg. 13,277, 13,278 (Mar. 10, 2011).

14 Jabbarov v. Bush, No. 5-cv-2386-RBW (D.D.C. 2018), petition for habeas corpus filed, available at https://ccrjustice.org/sites/default/files/attach/2018/01/AlBihani_et_al_v_Trump_MotionforOrderGrantingWrit.pdf.

15 See Sabrina McCubbin, Smith v. Trump: AUMF Challenge Pretrial Motion Summaries, Lawfare Blog (Oct. 23, 2017) (describing this case, which was brought by a U.S. soldier, found non-justiciable by a federal district court, and is presently on appeal in the D.C. Circuit with respect to justiciability).

16 “US Must Stop Policy of Impunity for the Crime of Torture” – UN Rights Expert, UN Hum. Rts. Off. High Comm'r, (Dec. 13, 2017), at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22532&LangID=E (focusing on the case of one detainee for whom “noise and vibrations are reportedly still being used against him, resulting in constant sleep deprivation and related physical and mental disorders, for which he allegedly does not receive adequate medical attention”); see also Tom Miles, U.N. Expert Says Torture Persists at Guantánamo Bay; U.S. Denies, Reuters (Dec. 13, 2017), at https://www.reuters.com/article/us-usa-guantanamo-torture/u-n-expert-says-torture-persists-at-guantanamo-bay-u-s-denies-idUSKBN1E71QO (noting that the Pentagon denies these allegations).

17 Paul Sonne, Devlin Barrett & Ellen Nakashima, U.S. and Britain Are Divided over What to Do with Captured ISIS Fighters, Wash. Post (Feb. 14, 2018), at https://www.washingtonpost.com/world/national-security/us-and-britain-are-divided-over-what-to-do-with-captured-isis-fighters/2018/02/14/8ad4786e-0f7f-11e8-827c-5150c6f3dc79_story.html?utm_term=.53fa00ddadc7 (further noting both that the United States has been encouraging the United Kingdom to take custody and that trial in a U.S. federal court is also a possibility).

18 Exec. Order No. 13,823, supra note 1, at 4831.

19 Id.

20 U.S. Dep't of Defense Press Release, Media Availability with Secretary Mattis en Route to Brussels (Feb. 13, 2018), at https://www.defense.gov/News/Transcripts/Transcript-View/Article/1441004/media-availability-with-secretary-mattis-en-route-to-brussels [https://perma.cc/S95P-VJS8].

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