The GITMO Gamble: Will Trump Be Able to Send ISIS Members to Guantanamo Bay

By Andrew Hanson* (Published February 27, 2017)


During the presidential campaign, it was clear that Donald Trump wanted to keep Guantanamo Bay (GITMO) open for the detention of terrorism suspects, potentially including U.S. citizens.  An Executive Order draft appears to affirm the Administration’s desire to use GITMO for terrorism suspects, such as members of ISIS. But it may not be so easy to pursue this plan without help from Senate Democrats.

Interestingly, Trump’s authority to send ISIS detainees to GITMO was, in large part, due to President Obama. The Obama Administration based its use of force against ISIS on the 2001 Authorization for Use of Military Force (AUMF). The Administration interpreted the statue to authorize force against al-Qaeda, the Taliban, and their “associated forces” and it deemed ISIS to be an “associated force” of al-Qaeda. No court has analyzed this interpretation of the AUMF.

Another wrinkle is the case of Hamdi v. Rumsfeld, which stated that the AUMF’s grant of “necessary and appropriate force” includes the authority to detain enemy combatants for the duration of the relevant conflict.[1] This means that if ISIS is an “associated force” of al-Qaeda, then the president may detain them at GITMO during the duration of this seemingly endless conflict. As such, Obama’s interpretation of the AUMF authorizes Trump to send ISIS detainees to GITMO.

The same year Hamdi was decided, in Rasul v. Bush, the Supreme Court held that GITMO detainees have the right to challenge their detention under habeas corpus.[2] This would mean that an ISIS detainee brought to GITMO would be entitled to challenge their detention under the Obama interpretation of the AUMF. Many experts consider this interpretation to be a stretch.

If a court were to reject the AUMF as grounds for detaining ISIS members that would also limit the United States’ ability use military force (in the traditional sense) against ISIS targets overseas without a new authorization. To be sure, there is a legal opinion by the Office of Legal Counsel, which concludes that congressional authorization for funding in support existing conflicts would suffice for an authorization for that conflict. But that opinion deals primarily with the limitations imposed by the War Powers Resolution and it is not clear that the Supreme Court’s emphasis on the textual authorization of “necessary and appropriate force” in the AUMF could be applied to an authorization implied from merely approving funding for an existing conflict.

The end result is that if an ISIS detainee is brought to GITMO prior to a new AUMF and the court rejects the current government interpretation of the 2001 AUMF, the detainee may be ordered released and the use of military force overseas against ISIS may be impacted. The solution would be to either not bring ISIS detainees to GITMO or get congress to authorize a new AUMF related to ISIS. That’s where Senate Democrats comes in.

Senate Democrats appear to want GITMO closed, but that appears unlikely under the current Administration. However, they may be able to become an obstacle to transferring new detainees there. If Democrats were to filibuster attempts at passing a new AUMF, would Trump run the risk of proceeding on the current AUMF interpretation? Perhaps Democrats would find approving a new AUMF to be more important than preventing new transfers to GITMO? Or perhaps the courts would accept the “associated forces” interpretation. What seems clear is that there is a real gamble in pursuing the Administration’s desire to utilize GITMO moving forward. We will have to wait and see how things proceed.

(Photo Credit: Public Domain)

Andrew Hanson is a 3L at Harvard Law School.

[1] Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004).
[2] Rasul v. Bush , 542 U.S. 466, 483 (2004).