When President Trump signed an executive order to keep Guantánamo Bay open on Tuesday, he set the stage for a wave of new detainees into the controversial military prison.
“In the past, we have foolishly released hundreds of dangerous terrorists, only to meet them again on the battlefield — including the ISIS leader, al-Baghdadi,” Trump explained in his first State of Union address.
The new order reverses a decade of policy, specifically President Obama’s 2009 directive to close the facility in Cuba. But under Trump’s executive order, the federal government now has the greenlight to send more detainees to a place where they will have little chance of ever leaving. Of the 41 men still at the facility, 27 have no plans for a future trial while others are still fighting through cases that began nearly two decades ago.
“It [the executive order] does say that they may transport additional detainees to Guantanamo, and that is a game-changer. We haven’t done that for a decade,” explained Karen J. Greenberg, director of Fordham University law school’s Center on National Security. “He’s reopening a door that was shut.”
Nearly 780 people have been sent to Gitmo since it opened, but Presidents Bush and Obama worked to reduce that number by transferring suspects to other countries’ custodies. Even Bush, the first president to detain suspects in the War on Terror at Gitmo, eventually said he intended to close the facility, which the U.N. has condemned, near the end of his second term.
The U.S. also reserves the right to try terror cases in federal courts, where prosecutors have nabbed hundreds of convictions since 9/11. Under the executive order, the Department of Justice can still do that, but Attorney General Jeff Sessions said in March he’d prefer bringing new terror detainees to Gitmo.
Trump, who maintains that torture works, has also long pushed for full use of Gitmo again. While campaigning for president in February 2016, he promised to “load it up with some bad dudes.” Then in August, Trump’s Pentagon announced nearly $500 million in planned renovations at the military base where the prison is located, potentially on sections that've been used for detaining people in the past.
Trump also threatened to send a terror suspect who killed eight people in a truck attack in Manhattan last year to the prison, although he later backed off.
But despite giving the government official permission to keep sending detainees into Guantánamo, the executive order doesn’t change much actual policy for its “forever prisoners.”
“What’s remarkable about the executive order is how little it actually does, and how little it does to change the status quo,” said Steve Vladeck, a national security law expert at University of Texas.
Obama’s executive order called for the detention center to be shut down by 2010, but Congress halted those plans and restricted the president’s ability to move Gitmo detainees to the U.S. for trial in a civilian court, sealing prisoners’ fates to a long stay on the island.
Still, a new lawsuit could offer a last chance at freedom for some. The suit, filed by the Center for Constitutional Rights earlier in January, argues that by condemning prisoners to Guantánamo and endorsing no further releases, Trump has denied them due process and overstepped his legal authority to fight the War on Terror.