MIAMI _ Will President Donald Trump put pen to paper on Inauguration Day and declare the Guantanamo Bay prison Barack Obama couldn't close open for business? Will he order his secretary of defense to start searching the world for "some bad dudes" to put there?
Today, 20 of the last 60 war-on-terrorism prisoners are cleared for release, all sent to the remote base in southeast Cuba during the presidency of George W. Bush. The Obama administration is still looking for places to send them with security assurances that satisfy Secretary of Defense Ash Carter.
But a former Bush-era official responsible for detainee policy at the Pentagon, Cully Stimson, predicts the transfers will stop the day Trump takes office, Jan. 20, just two days shy of eight years after Obama ordered his administration to shut down the detention center at Guantanamo Bay.
"If you're not off the island by the moment he's sworn in, I don't think you're leaving for a while unless he decides otherwise. That's the president's prerogative," said Stimson, who runs the National Security Program at the Heritage Foundation.
This summer Trump told the Miami Herald that he disagreed with some of Obama's release decisions.
"Terrible people" got out and should not have been released, he said, offering no examples. At the time, however, a former prison hunger striker, Syrian Abu Wa'el Dhiab, had disappeared from his host country, Uruguay, only to turn up in Venezuela _ stirring concern in Congress about monitoring mechanisms for freed Guantanamo prisoners.
"As far as Guantanamo is concerned," Trump said, "I want to make sure, 100 percent sure, that if we're going to release people, No. 1 they are going to be people that can be released and it's going to be safe to release them. We have plenty of bad ones out there and I would use them for that."
Guantanamo staffers have long described the captives as well versed in American politics, thanks to free cellblock TV that offers satellite news programs such as Russia Today and Iran's Press TV. Election night was no different. "Many detainees did stay up and watch the election results" in Camp 6, says Army Lt. Col. John Parks, the Guantanamo prison spokesman the day after the elections.
Their reaction? None that the colonel could discern.
For his part, Trump has campaigned to grow it _ "load it up with some bad dudes" _ and make it cheaper, at one point suggesting that might be accomplished by using Cuban labor through renegotiation of diplomatic relations. He didn't elaborate on that idea. But Trump, a real estate builder, might have heard about the whopping $66 million price tag for the base's future 275-pupil K-12 school _ driven up because both the labor force and supplies have to be imported.
As for the prison, with just 60 captives, an estimated $445 million annual budget for detainee operations and up to 2,000 detention center staff, critics of the operation crunch the per-prisoner costs to $7.58 million a year.
Trump promised on the campaign trail in February to do it for a "tiny, tiny" fraction. "Maybe in our deal with Cuba we get them to take it over and reimburse us."
"Loading up" requires answering some hard questions about presidential authority. It turns out that Obama didn't have the authority to unilaterally close it. Now adding to the population would likely invite a court challenge from Guantanamo critics regarding who can be lawfully held there after a dozen years of both legislative and federal court intervention.
Stimson, a captain in the Navy Reserves Judge Advocate Corps, reminds that the 2001 Authorization for Use of Military Force, essentially a declaration of war on Osama bin Laden and his Taliban hosts, allows the Pentagon to hold al-Qaida and its affiliates as war prisoners at Guantanamo. That's "a narrow class of individuals," he says, urging a "prudent, multistep analysis" on whether to pursue wider authority to put Islamic State captives there.
At the Center for Constitutional Rights, legal director Baher Azmy said Friday the civil liberties group that has championed detainee rights at Guantanamo since nearly the day the prison opened would look to challenge detention of an Islamic State captive there in federal courts.
"Legally, there is no reasonable way an ISIS detention could be justified under the law that justifies the current detentions. That turns on the AUMF, a connection to 9/11," Azmy said, noting that based on candidate Trump's campaign rhetoric the New York firm might find itself re-litigating already presumed settled questions.
The first order of business, he said, would be getting access to any new Guantanamo captive, making sure he is not kept incommunicado like the Bush administration did in the first years before the U.S. Supreme Court ruled that Guantanamo captives do get to challenge their detention in federal courts.
As for whether Trump will rescind Obama's Jan. 22, 2009, closure order on Inauguration Day, a legacy item that Congress systematically thwarted through blocking legislation, that really depends on whether he makes that a priority.
Brookings Institution Senior Fellow John Hudak, who has studied executive orders, says it's simply a matter of someone senior in the administration deciding this is a Day One action item for Trump's desk in the Oval Office soon after he's sworn in.
It could be as simple, Hudak said, as drafting a document "saying that Guantanamo Bay will remain open and will continue operations there." It could also be as simple as a directive to the Department of Defense: "Don't close it," he said.
Hudak points to the long tradition of the Global Gag Rule on the U.S. Agency for International Development. Started by President Ronald Reagan, it requires foreign organizations involved in family planning policies to certify that they will not promote or perform abortions as a condition of receiving federal funds. It was rescinded by President Bill Clinton, reinstated by Bush, and rescinded again by Obama.
Guantanamo policy watchers say they will be looking for what the White House tells the Pentagon to do about the Periodic Review Board that Obama created with the mandate of reviewing the files of uncleared, uncharged captives. International Red Cross leadership had been advocating for this for years, especially at the height of a crippling hunger strike, to provide the captives not just hope but a Geneva Convention-style format for reviewing their status.
Obama began his administration with a pause at the war court, called military commissions. That led to withdrawal of charges, reform of the system and a delay in the start of the current death-penalty trials. Stimson said he has seen nothing "from the candidate Trump that he's skeptical of commissions; I'm not sure he or his team would have an interest in pausing commissions."
In his August interview Trump also left open the possibility of bringing U.S. citizens to the detention center for trial by military commission, something that by law is expressly meant for foreigners.
Stimson encouraged the new administration to undertake "a very vigorous discussion by the lawyers in the know about whether that would be prudent and how that will affect the other detainees at Gitmo who are not U.S. citizens."
