Guantanamo detainees on US soil: a legal minefield

President Obama’s decision to transfer as many as 100 terror suspects from Guantánamo 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 Guantánamo, detainees have a constitutional right to challenge the legality of their detention in federal court. But that’s 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?

“It is an unanswered question. We’ve never done this before,” says Scott Silliman, a professor at Duke University Law School and director of the Center for Law, Ethics, and National Security.

“They are probably going to end up with more rights than they have at Guantánamo Bay, but how much more, we don’t know,” he says.

They're not in Cuba anymore

Congress passed a series of laws aimed at stripping Guantánamo 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 Guantánamo, 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 Guantánamo will fall away.

“The main argument the government has had as to why these men don’t have rights is that they are held outside the sovereign territory of the United States,” says David Remes, legal director of the Washington-based group Appeal for Justice and who represents 20 Guantánamo detainees.

“The Supreme Court rejected that,” he says. “But the government is still arguing that the detainees have no constitutional rights beyond habeas rights because they are offshore.”

Mr. Remes adds, “If 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.”

Move could strengthen detainee lawsuits

These constitutional claims could strengthen the detainees’ 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 Guantánamo to Thomson Correction Center Illinois.

“When the habeas lawyers heard that Obama wanted to close Guantánamo, we thought that was a good thing because it would mean the men would be sent home,” he says. “We never imagined that to close Guantánamo would mean ‘move to a new location.’ “

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 “relatively humane conditions of confinement” at Guantánamo may find themselves transferred into bleak supermax prison conditions.

Open-ended detention

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. “Where is the authority to do that?” he asks. “You are talking about a domestic preventative detention program. I know of no statute that currently authorizes it.”

For the transfers from Guantánamo 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 government’s 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 president’s 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.

“There are a lot of unanswered questions,” the professor says. “It is one thing when you are picking folks up on the battlefield. It is another thing when you are moving them from Guantánamo Bay inside the US – and relying on the theory that you are keeping them off the battlefield.”

He adds, “That has its limitations.”

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