Rights of Guantanamo Detainees?

As reported by Charlie Savage, the administration has now released its long-awaited report on the legal implications of relocating Guantanamo detainees to the United States (an issue which I wrote about here).

The report ought to dispel a lot of the fear-mongering that often surrounds the debates on the issue:  Bottom line, the administration concludes, “existing statutory safeguards and executive and congressional authorities provide robust protection of national security.”   I may have more to say on this later, but suffice it to note for now the following conclusions:

(1)  Guantanamo detainees would be ineligible for asylum or other forms of discretionary immigration relief.

(2) Even if ordered released from law of war detention, they would be put into removal proceedings, and could, according to the report, be held pending removal, pursuant to 8 U.S.C. § 1226a, so long as the Attorney General makes the requisite certification, even if removal takes quite some time (an issue Steve and Deborah Pearlstein have debated here).

(3) While detainees cannot – and will not – be returned to places where it is more likely than not that they will be tortured, this doesn’t mean they must stay in the United States.   Rather, the administration can, and would, seek a third party placement (although doing so is not an easy task in every case).

Finally, it’s worth noting the administration’s creative pivot.  While Congress mandated reporting on “any additional constitutional right” that detainees brought to the United States might accrue, the administration simply stated that the detainees would not have any constitutional rights beyond those that would apply to a similarly situated alien present in the U.S. in the same context.  It did not identify any additional constitutional rights they would enjoy, above and beyond those that they have at Guantanamo.   For what it’s worth, my view is that they have due process rights both here and at Guantanamo, but at the end of the day, not that much turns on it, given how watered down these rights have been interpreted to be.

 

  

About the Author(s)

Jennifer Daskal

Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).