In an important brief filed in court on Friday, had the Justice Department wanted to recognize that the Constitution’s due process clause applies to detainees held at Guantanamo, the brief would have essentially written itself. The Supreme Court already decided in 2008, in the case of Boumediene v. Bush, that the Constitution’s Suspension Clause applies to the wartime detainees at Guantanamo, guaranteeing them habeas corpus rights. As the American Bar Association has noted, “Under a straightfoward application of Boumediene, Guantanamo detainees are entitled to claim the protections of the Due Process Clause.”
Admittedly the ability of non-citizens outside the United States to claim any constitutional right is an uphill climb. But as the Supreme Court reasoned in Boumediene, “In every practical sense Guantanamo is not abroad; it is within the constant jurisdiction of the United States.”
That is likely why the Department of Defense and Department of State reportedly wanted Friday’s brief to recognize the due process clause applies to the prisoners at Guantanamo, and why the intelligence agencies accepted that legal position as well.
The brief was submitted in classified form, but the New York Times reported that the Biden administration punted on the key legal question. The brief was silent on whether the due process clause applies at all at Guantanamo.
According to Charlie Savage’s reporting, the reason for this ambiguous result rests with officials at the Justice Department, where lawyers who served during the Trump administration (and the W. Bush and Obama administrations before that) are reluctant to acknowledge this straightforward application of the law. Some of these lawyers wrote a brief in December 2020 claiming that the due process clause does not apply to Guantanamo detainees.
The remainder of this article focuses on the legal doctrine at issue, but there are policy implications worth highlighting up front. Failure to recognize that due process rights apply at Guantanamo not only undercuts President Biden and Secretary Austin’s stated goal of closing the prison (read Chair of the Senate Judiciary Committee Dick Durbin’s (D-IL) powerful letter to the Justice Department along those lines). What’s perhaps even worse is the legacy effect of the Justice Department’s position: it risks having Guantanamo remain a “legal black hole” for future presidents to transfer and indefinitely detain individuals in wartime or other situations.
The Justice Department may wish to preserve flexibility for the executive branch with its legal stance. However, there are countless situations in which “flexibility” undermines political leaders’ policy objectives, and this is surely one of them.
Regardless, one can anticipate that the judges hearing the case will press government lawyers to answer the constitutional question, either in subsequent briefing or at oral argument. “Counselor, does the government dispute the petitioners’ claim that the Due Process Clause applies at Guantanamo?” — is one version of the question. There’s one right answer.
The Supreme Court Has Spoken
Unlike some murky areas of constitutional law, there is Supreme Court case law on point for the purposes here. In Boumediene, the Court held that a “functional approach” determines whether a constitutional provision, such as the right to habeas corpus, extends to territory outside the United States. The functional approach would clearly support the due process clause, like the Suspension Clause, applying at Guantanamo.
At first blush, there appears to be contrary case law, but not on closer inspection. The Trump Justice Department’s brief stated that “the Supreme Court in Johnson v. Eisentrager , rejected the notion that ‘enemy combatants detained by American military forces in Germany’ could invoke the Due Process Clause” due to “such extraterritorial application.” But that reference to judicial authority is its own undoing. Rather than involving such an extraterritorial application, Boumediene turned on the fact that “in every practical sense Guantanamo is not abroad.”
In Boumediene, the Supreme Court explicitly concluded that, as a functional matter, the circumstances in Eisenstrager — a time-limited and collective occupation of Germany in which U.S. control of the prison was “neither absolute nor indefinite”– was substantively very different from Guantanamo and the United States’ indefinite, exclusive, and total control over the detention facility there.
This understanding of the Court’s doctrine is well recognized. “In Boumediene, the Court determined that Guantanamo was de facto U.S. territory,” then-Judge Brett Kavanuagh wrote when serving on the D.C. Circuit, in which he directly contrasted the decision with Eisenstrager. Writing for the Supreme Court majority in a 2020 decision, Justice Kavanaugh quoted Boumediene for the proposition that “under some circumstances, foreign citizens in the U. S. Territories—or in ‘a territory’ under the ‘indefinite’ and ‘complete and total control’ and ‘within the constant jurisdiction’ of the United States—may possess certain constitutional rights.” Indeed, the Boumediene Court explained that the functional approach to territory applied across a range of cases concerning different constitutional provisions — from the Insular Cases to Reid v. Covert and others.
But what about a slippery slope? Wouldn’t the government’s recognition that the due process clause applies at Guantanamo mean that federal judges may erroneously say in future that constitutional rights apply in other locations under U.S. control and the like? First, take a moment to reflect on the ethical implications of that line of reasoning. It would mean the administration knows but should not recognize that these detainees have due process rights on the speculation that courts in future may afford some constitutional protections to other people where the executive branch believes they shouldn’t. What an unsound reason to deny these detainees have constitutional rights.
Regardless, the slippery slope idea is unfounded for other reasons too. The degree of U.S. control over Guantanamo — making it “de facto U.S. territory” — is an extremely high bar for any other situation to reach or even approximate. And if that threshold were somehow met, the government could still demonstrate “practical barriers” to implementing the right to preclude its recognition, as provided by Boumediene’s functional approach. What’s more, the courts have been directly tested on whether they would go down any slope following Boumediene, and they didn’t. In Al Maqaleh v. Gates, a three-judge panel (including two liberal judges) on the Court of Appeals for the District of Columbia unanimously held that the Suspension Clause did not apply to detainees held at Bagram Airfield Base. “While it is certainly realistic to assert that the United States has de facto sovereignty over Guantanamo, the same simply is not true with respect to Bagram,” the court explained. Further applying Boumediene’s framework, the court also found a host of “practical obstacles” worked against extending the right of habeas to Bagram, including that the military facility was (unlike Guantanamo) located in a theater of war.
It would be beyond anomalous to suggest that the due process clause does not apply to Guantanamo using the Boumediene framework. To put it more strongly, no good argument can be made that there are practical barriers to applying the due process clause along with the suspension clause to the Guantanamo detainees, which is the only theoretical hope for claiming the functional approach should produce a different result. Moreover, as the ABA’s amicus brief explains, the rights to habeas corpus and due process generally work “hand-in-hand” and run together (citing Blackstone and Justice Antonin Scalia’s writing).
In terms of practical capacity to afford due process rights, it is no surprise the Defense Department’s lawyers reportedly accept the due process clause applies to the military facility at Guantanamo. Also, the government’s brief filed on Friday reportedly tells the court that existing policies already afford Guantanamo detainees the same level of protection that the Fifth Amendment requires. That surely robs the government of claiming that it is “impractical” or “anomalous” to afford the Guantanamo detainees the protections of the due process clause.
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The Justice Department would have served President Biden and US national security interests best by acknowledging the due process clause of course applies at Guantanamo, and arguing instead on the more solid ground of what exactly the scope of due process rights should be in that context. When asked in future briefing or at oral argument about the United States’ legal position, the government will have another opportunity to do the right thing as a matter of law and policy.