Gitmo Is Not the Answer

Josh Geltzer and Luke Hartig wrote a piece for Slate on Guantanamo Bay.

The Trump administration is reportedly facing thorny challenges in weighing exactly what to do with the hundreds of Islamic State of Iraq and Syria detainees held in northern Syria by the U.S. government’s Kurdish-led partners, known as the Syrian Democratic Forces. This policy predicament, of course, was inevitable. Several hundred ISIS detainees cannot simply be released into the still-simmering conflict in Iraq and Syria; nor is detention by the SDF, a non-state armed group in Bashar al-Assad’s Syria, a long-term solution. To make matters harder, although many are foreign fighters, their home countries have been wary of taking them back.

What’s new this week is a report by NBC News indicating that the administration is considering sending a small number of them to Guantanamo Bay—including two men alleged to have killed American hostages, Alexanda Kotey and El Shafee Elsheikh—and transferring the remainder to a detention site in Iraq, at least until longer-term dispositions can be arranged. While there are real challenges and difficult trade-offs to be made, one question should not be difficult at all: Nobody should be sent to Guantanamo. It would be bad policy fraught with legal risk, and it would send a terrible message to both our allies and our adversaries, dampening an otherwise encouraging record of progress against ISIS.

There is no shortage of reasons that sending ISIS detainees to Guantanamo Bay would be a horrible policy choice. First, it likely would preclude their trial in our effective, time-tested federal civilian courts, where more than 660 terrorists have been convicted since 9/11. This is because Congress has made transfer to Guantanamo essentially a one-way trip. Statutory restrictions bar sending Guantanamo detainees to the United States in all circumstances, including for trial in federal court. And unless legally compelled to do so (as in a recent case), the Trump administration has opposed transferring detainees to their home nations or third countries. That means Guantanamo cannot even serve as a way station en route to prosecution of detainees in their home countries or the United States: it is a stark alternative to it.