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By Meg Wagner

A possible blow to the war on ISIS

President Donald Trump is reportedly working on a plan to lock up suspected members of the Islamic State militant group (ISIS) inside the military prison at Guantánamo Bay —a move that could both force Congress to finally vote to authorize the use of force against ISIS, and add more detainees to the controversial facility.

The White House is said to be drafting an executive order that would direct the Department of Defense to use the camp in Cuba to hold suspected members of “Al Qaeda, the Taliban, and associated forces, including individuals and networks associated with the Islamic State,” according to a copy obtained by the New York Times.

But Congress has never officially signed off on military operations against ISIS, as the Obama Administration argued in 2014 that actions against the violent Islamist rebel organization were covered by the 2001 authorization of force against al Qaeda. The draft Trump order, however, suggests that the war against ISIS is its own conflict, setting up a potential constitutional challenge.

National security officials have warned that the current wording in the document could allow ISIS members detained at Guantánamo to successfully challenge their detention by suing over the constitutionality of military operations against the group.

Congress could have explicitly authorized the Administration to use military force against ISIS, but declined to do so in 2015 and 2016. Congress also repeatedly stymied Obama’s efforts to close down the Guantánamo facility.

Downsized, but not shuttered

Obama’s 2008 presidential campaign included a promise to shut Guantánamo Bay down, which had been heavily criticized during the presidency of George W. Bush for its use of torture and for holding prisoners indefinitely without trial. On Obama’s second day in office, he signed an executive order vowing to shutter the camp within a year.

But the shut down never happened. Despite Obama’s failure here, the number of detainees declined under his administration, from 242 in January 2009 to 41 in January 2017.

During that time, 196 detainees were transferred to other countries, one went to a Supermax prison in Colorado, and four died in custody. Obama continued to transfer detainees up until his final weeks in office, approving 18 detainees’ release from Cuba in January — despite the then-president-elect’s protests.

There should be no further releases from Gitmo,” Trump tweeted. “These are extremely dangerous people and should not be allowed back onto the battlefield.”

It’s not clear exactly how many new detainees affiliated with ISIS the U.S. could send to Gitmo under Trump’s proposed order. Currently, most ISIS fighters not killed in battle are held by the Iraqi National Police, and the U.S. military has had access to only a few of them.

In 2015, the U.S. military acknowledged the existence of a facility in Iraq at which captured ISIS combatants were being held, but has not confirmed how many are there.

Bringing back waterboarding?

Life for all Gitmo detainees — both the suspected al Qaeda and Taliban members incarcerated during the George W. Bush administration and any ISIS members added to the population as a result of Trump’s orders — could also become more tortuous. Trump previously said he’d reinstate waterboarding, a tactic that had been used at the prison during the Bush administration, only to be banned under Obama.

“I would bring back waterboarding, and I’d bring back a hell of a lot worse than waterboarding,” Trump said at a 2016 Republican primary debate. He repeated the torture proposal in January — but his language seemed to soften after newly-minted Defense Secretary James Mattis voiced his opposition to the tactics.

“When ISIS is doing things that nobody has ever heard of since medieval times, would I feel strongly about waterboarding? As far as I’m concerned, we have to fight fire with fire,” Trump told ABC News in January, adding that he will rely on “Mattis and my group. And if they don’t want to do, that’s fine.”

There’s no word on when Trump may sign a finalized version of the Gitmo executive order.