The D.C. Circuit, Article II, and the Constitutionality of the Guantánamo Transfer Restrictions

When President Obama transferred five Taliban detainees from Guantánamo in exchange for American POW Bowe Bergdahl, forests were felled over whether the Obama Administration was arguing that the statutory restrictions on detainee transfers (including the 30-day notice requirement) were simply inapplicable to the unique facts of Bergdahl’s case, or whether they might, instead, be unconstitutional insofar as they interfered with the President’s Article II powers. But whereas that conversation was mostly one for the political (and blogo-)sphere (since no one would have standing to challenge a violation of the transfer restrictions), the legal question has now made its way to the D.C. Circuit, in the context of Ajam v. Butler, an appeal in which a redacted version of the detainee’s opening brief was unsealed today. And although the question in Ajam is specific and technical, the case has the potential to have wide-ranging consequences not just at Guantánamo, but for the separation of powers more generally.

As the unsealed brief explains, Ajam is a Syrian detainee whom the Guantánamo Review Task Force recommended for transfer in January 2010, and who alleges that the only reason why he remains at Guantánamo today is because of the various restrictions on detainee transfers that Congress began imposing shortly thereafter. He claims that the transfer restrictions are thereby unconstitutional insofar as they (1) interfere with the President’s constitutional authority as commander-in-chief; (2) interfere with the President’s constitutional authority over foreign affairs, more generally; and (3) constitute a bill of attainder.

In April of this year, Judge Leon ruled for the government, holding that (1) Ajam lacked standing to pursue the Commander-in-Chief Clause argument; and (2) the bill of attainder claim was without merit because the effect of the transfer restrictions–Ajam’s continuing military detention–is not “punishment,” and therefore not protected by the Bill of Attainder Clause. This order is the one Ajam now seeks to have overturned by the D.C. Circuit. I suspect there’s a lot more to say about the merits of Ajam’s claims–and that others may well weigh in on the subject in the coming days and weeks. Let me just offer two preliminary observations:

First, unlike the bill of attainder analysis (which–whether or not it should be–is compelled by settled precedent), Judge Leon’s standing analysis hardly strikes me as obvious. Yes, we don’t usually think of individuals as having “rights” under the Commander-in-Chief Clause. But under jus tertii doctrine, standing does not require a litigant to sue to enforce his own rights; it requires a litigant to sue based upon an injury he sustains as a result of the defendant’s action (or inaction). To take a well-known example, the landmark Supreme Court decision in Craig v. Boren came in a lawsuit in which a (male) vendor sued to challenge Oklahoma’s disparate age restrictions for sales of “near beer” on the ground that they violated the Equal Protection Clause.

In Ajam’s case, his claim is that the defendant–Admiral Butler, Commander of JTF-GTMO–is injuring him by subjecting him to continuing military detention because of an unconstitutional statute. Why the statute might be unconstitutional should not control the standing analysis. Instead, Ajam should only need to prove that it is the NDAA (as opposed to the Executive Branch’s wholly discretionary choice to not transfer him) that is causing his injury. Of course, that may well be an uphill battle (Judge Leon certainly thought so). But insofar as Ajam alleges as much, I think he does have standing at this stage to raise the Commander-in-Chief Clause argument–without a view as to the merits of his claim. In ruling to the contrary, Judge Leon relied upon the conclusion that Ajam has no general right to be released absent a court order so providing. Of course, that’s correct. But if the government were to concede that it would have sought to exercise its discretion to transfer Ajam but for the transfer restrictions, this becomes a very different case, very quickly. That is to say, the standing issue appears to turn on a far more specific question than the one Judge Leon appeared to answer in his April ruling.

Second, and militating somewhat in the other direction, I don’t understand why Ajam hasn’t also claimed that, insofar as they bar his transfer and/or release, the transfer restrictions violate the Suspension and/or Due Process Clauses. If anything, that strikes me as a stronger argument, since Justice Kennedy emphasized in Boumediene that a habeas remedy, in order to be meaningful, must also include the power to facilitate the detainee’s release. Of course, Ajam hasn’t actually won a habeas petition on the merits–and so the NDAA isn’t interfering with the courts‘ power to release him. But if, instead, the argument is that the transfer restrictions satisfy the Suspension Clause by authorizing (indeed, mandating) continuing detention in lieu of transfer, then it strikes me that one could attack the lack of procedural or substantive standards for such detention on due process grounds. It’s not open-and-shut, to be sure–but neither are the commander-in-chief or bill of attainder arguments…

If the government does concede that Ajam might have been released but for the transfer restrictions, then Ajam could force the D.C. Circuit to confront at least one question of first impression: Can anyone other than the President enforce an alleged violation of the Commander-in-Chief Clause? And if the answer is yes, that, in turn, will require the D.C. Circuit to answer the deep constitutional question raised by the Bergdahl affair–with potentially enormous ramifications not just for the Guantánamo detainees, but for the separation of powers, more generally. I’m not holding my breath, but stranger things have happened. 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).