Eight years ago, when I wrote a book on the first days of Guantánamo, The Least Worst Place: Guantánamo’s First 100 Days, I assumed that Gitmo would prove a grim anomaly in our history. Today it seems as if that “detention facility” will have a far longer life than I ever imagined and that it, and everything it represents, will become a true, if grim, legacy of 21st-century America.
It appears that we just can’t escape the perpetual pendulum of the never-ending war on terror as it invariably swings away from the rule of law and the protections of the Constitution. Last month, worries that had initially surfaced during the presidential campaign of 2016 over Donald Trump’s statements about restoring torture and expanding Guantánamo’s population took on a new urgency. In mid-September, the administration acknowledged that it had captured an American in Syria. Though no facts about the detained individual have been revealed, including his name or any allegations against him, the Pentagon did confirm that he has been classified as an “enemy combatant,” a vague and legally imprecise category. It was, however, one of the first building blocks that officials of George W. Bush’s administration used to establish the notoriously lawless policies of that era, including Guantánamo, the CIA’s “black sites,” and of course “enhanced interrogation techniques.“
Placing terrorism suspects apprehended while fighting abroad in American custody is hardly unprecedented. The US government has periodically captured citizen and noncitizen members of ISIS, and fighters from the Somali terrorist organization al-Shabaab, as well as from Al Qaeda–linked groups. To those who have followed such matters, however, the Trump administration’s quick embrace of the term “enemy combatant” for the latest captive is an obvious red flag and so has elicited a chorus of concern from national-security attorneys and experts, myself included. Our collective disquiet stems from grim memories of the extralegal terrorism policies the Bush administration institutionalized, especially the way the term “enemy combatant” helped free its officials and the presidency from many restraints, and from fears that those abandoned policies might have a second life in the Trump era.