In the statement that he issued as he signed the 2014 National Defense Authorization Act (NDAA), President Obama, addressing the Act’s continuing restrictions on the transfer of individuals detained at the military base in Guantanamo Bay, Cuba into the United States, acknowledged that the Act eased the foreign transfer restrictions previously imposed by Congress, but warned that they might nevertheless “violate separation of powers principles,” even though “[s]ection 1035 of “th[e] Act gives the Administration additional flexibility to transfer detainees abroad by easing rigid restrictions.”
It is unclear whether the President is correct that the domestic transfer restrictions in the NDAA might represent an impermissible congressional infringement on the President’s constitutional powers. Although, as the Commander-in-Chief, the President surely has some constitutional protected prerogatives with respect to determinations about where military prisoners should be held or tried, it is unclear how this power relates to congressional authority to “make Rules concerning Captures on Land and Water” and “[t]o make Rules for the Government and Regulation of the land and naval forces . . . .” Perhaps congressional authority under these provisions is broad enough to sustain sections 1034 and 1035. There is, however, an even stronger line of constitutional attack on these provisions.
Of the approximately 150 foreign nationals currently detained at Guantanamo pursuant to the congressional Authorization for the Use of Military Force (AUMF), about half have been cleared for release by the Administration’s Guantanamo Detainee Review Task Force, which the President, by an executive order issued five years ago today, tasked with reviewing the propriety of the continued detention of individuals held at Guantanamo. Under the Task Force’s guidelines for detention at Guantanamo, “a detainee should be considered eligible for continued detention under the AUMF only if (1) the detainee poses a national security threat that cannot be sufficiently mitigated through feasible and appropriate security measures; (2) prosecution of the detainee by the federal government is not feasible in any forum; and (3) continued detention without criminal charges is lawful.” Thus, under the Administration’s own reading of the AUMF, there is no national security necessity for the continued detention of individuals who have been cleared for release, nor is there statutory authority for such continued detention. There is, accordingly, a serious case to be made that continuing to hold these individuals at Guantanamo amounts to an unconstitutional suspension of the privilege of habeas corpus.
The Supreme Court’s landmark 2008 decision in Boumediene v. Bush not only held that foreign nationals detained at Guantanamo Bay have a constitutional right to the privilege of habeas corpus, but specifically added that the Constitution requires that that a court be able to order release as a remedy in a habeas case. And for individuals who have obtained a writ of habeas corpus, there plainly is no legal basis for their continued custody. As Boumediene holds, the Constitution requires release as a remedy in a successful action for habeas corpus. Moreover, the same entitlement to release exists for individuals that the Executive has cleared for release.
A bare majority of the Supreme Court interpreted the AUMF to permit detention of enemy combatants in Hamdi v. Rumsfeld, but only if detention is conditioned on the Executive’s judgment that the detainee represents a threat if released. The plurality reached this conclusion because detention may sometimes be necessary to prevent a detainee from returning to hostilities: “Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of “necessary and appropriate force,” Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.” Justice Thomas, who provided the critical fifth vote in support of the government’s power to detain,went further: “[A]n Executive, acting pursuant to statutory and constitutional authority, may, consistent with the Due Process Clause, unilaterally decide to detain an individual if the Executive deems this necessary for the public safety even if he is mistaken.” On either view, once the executive has cleared an individual for release, there is no basis in the law of war or the powers of the commander-in-chief for continued detention of that individual.
In light of this, one could well ask why individuals who have been cleared for release remain at Guantanamo. That inquiry leads to the transfer restrictions that Congress has imposed with respect to individuals detained in Guantanamo. The 2014 NDAA, as the President noted in his signing statement, continues previously enacted signing restrictions, although in a somewhat diluted form. Section 1034 prohibits the use of appropriated or available funds to transfer or release Khalid Sheikh Mohammed or any other detainee is or was held on or after January 20, 2009, at Guantanamo Bay within the United States, its territories or possessions. With respect to transfer of detainees to foreign countries, section 1035(a)(1) permits transfer if there has been a determination by a Periodic Review Board that “the individual is no longer a threat to the national security of the United States,” but for all other individuals, including those who have been cleared for release, section 1035(b) permits transfer to a foreign country “only if the Secretary [of Defense] determines” that “actions that have been or are planned to be taken will substantially mitigate the risk of such individual engaging or reengaging in any terrorist or other hostile activity that threatens the United States or United States persons or interests,” and that “the transfer is in the national security interest of the United States.”
Critically, in making these determinations, section 1035(c) requires the Secretary of Defense to “specifically evaluate and take into consideration” eight enumerated factors, including “[t]he security situation in the foreign country to which the individual is to be transferred, including whether or not the country is a state sponsor of terrorism, the presence of foreign terrorist groups, and the threat posed by such groups to the United States,” and “[a]ny confirmed case in which an individual transferred to the foreign country to which the individual is to be transferred subsequently engaged in terrorist or other hostile activity that threatened the United States or United States persons or interests.”
It is of course unclear how the Secretary of Defense has weighed or will weigh the various statutory factors identified in section 1035(c). But, to the extent that they inhibit transfer of individuals cleared for release — or, indeed, to the extent that individuals cleared for release remain in custody despite the executive’s determination that release is appropriate, foreign nationals that the executive has determined need not be detained, and for whom there is no apparent statutory authorization for continued detention, nevertheless remain confined to the Naval Station at Guantanamo Bay. This likely amounts to an unconstitutional suspension of the privilege of habeas corpus because these individuals that the Commander-in-Chief does not regard as in need of further detention and for whom there is no statutory authorization for continued detention have not been released from custody. To be sure, Human Rights Watch reports that these individuals are not subjected to especially onerous conditions of confinement. Even so, these individuals have been forcibly removed from their place of prior residence and are presently confined to the general population of a detention center, far from friends and family. Surely if any of us were confined to a military detention center, even under relatively benign conditions, we would not regard ourselves as “free” from custody.
In the related context of a “seizure” within the meaning of the Fourth Amendment, the Supreme Court has held that “whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Moreover, it has long been settled that an individual excluded from the United States is considered in custody and entitled to challenge the exclusion through habeas corpus even though the individual is free to leave the United States; because such an the individual’s “movements are restrained by authority of the United States, and he may by habeas corpus test the validity of his exclusion,” and “that is true whether he enjoys temporary refuge on land, or remains continuously aboard ship. An individual that remains confined to a military base surely has not obtained release as is constitutionally required for those entitled to the privilege of habeas corpus.
There is, however, a way to interpret the NDAA to avoid this constitutional infirmity (even assuming that it is effectively impossible for an individual to leave Guantanamo Bay without making some forbidden use of appropriated funds). Under section 1035(a)(2), the statutory restrictions on transfer to a foreign country do not apply if “such transfer or release outside the United States is to effectuate an order affecting disposition of the individual by a court or competent tribunal of the United States having jurisdiction.” Thus, if a detainee can obtain a writ of habeas corpus directing his transfer and release to a foreign country, the NDAA poses no statutory bar to execution of that judgment.
There remains a question about what should happen to an individual who cannot identify a suitable foreign country for transfer, either because no foreign country is willing to receive that individual, or because the detainee himself justifiably fears that torture, persecution, or some other cognizable harm would befall him in whatever countries are willing to accept the detainee. In such a case, it may well be that a writ of habeas corpus would have authority to order to detainee’s transfer to and release in the United States notwithstanding the transfer restrictions in the NDAA. To be sure, the D.C. Circuit has held that a habeas court cannot order release into the United States absent statutory authority, although it did not question that successful habeas petitioners have a right to release. Indeed, responding to Judge Rogers’ separate opinion contending that a habeas court must have authority to order a detainee’s release, the court wrote: “The question here is not whether petitioners should be released, but where.” The court was not asked to, and did not decide whether the Suspension Clause would tolerate a refusal to release an individual within the United States if the executive could not identify a foreign county to which the individual could be released.
Yet, continuing to hold an individual in custody at Guantanamo even after he has been cleared for release by the executive seems to be a plain violation of the Suspension Clause as interpreted in Boumediene, and if the constitutionally required release from custody could only be achieved by ordering the release of a detainee within the United States, the Constitution surely trumps a statutory restriction on transfer. To the extent that broad dicta in the D.C. Circuit’s decision suggests otherwise, it can be squared with neither the constitutional right to habeas corpus nor Boumediene. Thus, if a habeas court were to find that a detainee cannot obtain release anywhere but in the United States, then the Suspension Clause might well require that such a release be ordered in order to avoid an unconstitutional suspension of the constitutional privilege of habeas corpus. Indeed, one of the co-editors-in-chief of Just Security, Steve Vladeck, has suggested that an appropriate remedy in such a habeas corpus proceeding would be “to order the government to release the prisoner within a specified, finite period of time, and to sanction the government if it failed to do so.” The order set aside by the D.C. Circuit, in contrast, directed the government to release the petitioners within the United States, and for that reason was properly set aside. A petitioner who obtains a generic order of release, in contrast, coupled with a finding that release can only be achieved by transfer to the United States, should be able to enforce that order by virtue of the Suspension Clause, regardless of statutory transfer restrictions Congress has imposed.