Guantanamo detainees on US soil: a legal minefield
President Obama wants to house some Guantanamo detainees in an Illinois prison. But bringing the detainess to the US will likely broaden their legal rights. 'How much?' is the unanswered question.
President Obamaâs decision to transfer as many as 100 terror suspects from GuantÃ¡namo Bay, Cuba, to a maximum security prison in rural Illinois potentially sets the stage for a new round of high-stakes legal battles over what additional rights, if any, Al Qaeda suspects are entitled to.
Under their current terms of confinement at GuantÃ¡namo, detainees have a constitutional right to challenge the legality of their detention in federal court. But thatâs it.
In contrast, from the moment the detainees set foot on US soil, their lawyers will have the ability to tap into the full array of constitutional and other legal protections enjoyed by every American citizen and resident.
How broad might those protections be?
âThey are probably going to end up with more rights than they have at GuantÃ¡namo Bay, but how much more, we donât know,â he says.
They're not in Cuba anymore
Congress passed a series of laws aimed at stripping GuantÃ¡namo detainees of potential legal rights, including the right to challenge the conditions of their confinement at the prison camp and to claim fundamental protections of due process.
But the US Supreme Court has issued a series of decisions establishing rights at GuantÃ¡namo, including a 2008 decision finding a constitutional right to challenge the legality of their confinement via habeas corpus petitions in federal court.
Once detainees are moved to the US, the tangle of congressional restrictions on detainee rights at GuantÃ¡namo will fall away.
âThe main argument the government has had as to why these men donât have rights is that they are held outside the sovereign territory of the United States,â says David Remes, legal director of the Washington-based group Appeal for Justice and who represents 20 GuantÃ¡namo detainees.
âThe Supreme Court rejected that,â he says. âBut the government is still arguing that the detainees have no constitutional rights beyond habeas rights because they are offshore.â
Mr. Remes adds, âIf the men are brought to the US, the government will no longer have that argument, and it will be possible for the detainees to raise a wider set of constitutional claims.â
Move could strengthen detainee lawsuits
These constitutional claims could strengthen the detaineesâ ongoing habeas corpus lawsuits, Remes says.
Remes, who has spent years litigating on behalf of the detainees, says he doesn't support transferring the men from GuantÃ¡namo to Thomson Correction Center Illinois.
âWhen the habeas lawyers heard that Obama wanted to close GuantÃ¡namo, we thought that was a good thing because it would mean the men would be sent home,â he says. âWe never imagined that to close GuantÃ¡namo would mean âmove to a new location.â â
Remes says he is concerned that the transfer to Illinois may worsen the day-to-day living conditions of his clients. He says he is worried that men now living in ârelatively humane conditions of confinementâ at GuantÃ¡namo may find themselves transferred into bleak supermax prison conditions.
The Obama administration has suggested that it is considering housing a number of the detainees sent to Illinois in open-ended military detention without charge. These are the detainees the administration considers too difficult to prosecute but too dangerous to send home.
Professor Silliman says such an effort will likely spark appeals. âWhere is the authority to do that?â he asks. âYou are talking about a domestic preventative detention program. I know of no statute that currently authorizes it.â
For the transfers from GuantÃ¡namo to take place, the president must first convince Congress to lift its current restrictions on detainee transfers to the US, Silliman says. Congress has said detainees may only be brought to the US for trial.
The administration must also work with Congress to establish statutory authority to hold military detainees indefinitely in the US without charge, Silliman adds.
A law passed in 2001 authorizes the president to detain enemy combatants. But a 2004 Supreme Court ruling restricts the governmentâs use of that law to the detention of battlefield combatants during an ongoing military engagement, Silliman says. When the military conflict ends, so does the presidentâs authority to detain. The battlefield combatants must be sent home, he says.
The Obama administration continues to argue that the president has the authority to order the indefinite detention of terror suspects. But Silliman says that authority may disappear if the US withdraws from Afghanistan.
âThere are a lot of unanswered questions,â the professor says. âIt is one thing when you are picking folks up on the battlefield. It is another thing when you are moving them from GuantÃ¡namo Bay inside the US â and relying on the theory that you are keeping them off the battlefield.â
He adds, âThat has its limitations.â
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