Was it clearly established in 2006-07 that GTMO detainees were entitled to the protections of the Fifth Amendment? A district judge in Washington State thinks so, adding that it was clearly established that these rights were violated in the case of Adel Hassan Hamad of Sudan.
As Ben noted here, a district court in Washington State last week dismissed a civil action brought by former GTMO detainee Adel Hassan Hamad against former Secretary of Defense Gates (the suit is a project of the International Human Rights Clinic at Willamette University College of Law; see this poster touting the project, from the 2011 AALS meeting). The dismissal turned on the failure to sufficiently plead the personal involvement of Gates in the alleged constitutional violations. But though this was a sufficient ground to resolve the case, the court went out of its way in the opinion to reach and reject the argument that Gates was entitled to qualified immunity in any event. And that is where things get messy.
Note the dates that are in issue. Hamad was at Guantanamo from March 2003 until December 2007. That is to say, he was transferred out of GTMO some seven months prior to the Supreme Court’s decision in Boumediene concluded that GTMO detainees are protected by the Constitution’s Suspension Clause. Nevermind that Kennedy’s opinion in Boumediene pointedly does not confirm whether or not any other constitutional protections apply beyond the Suspension Clause, and the ongoing debates surrounding that question over the past four years. Even if Boumediene were clear on the point, government officials could hardly be faulted for not anticipating that this fiercely contested litigation (which had broken strongly in the government’s favor at the Circuit Court level) would turn out that way in the end. The idea that it was clear in 2006-2007 that the Fifth Amendment applied at GTMO—i.e., that Johnson v. Eisentrager did not control on this point—and that any reasonable person would have understood this at the time is simply preposterous.
The court’s response on this point? It is brief. Very brief. The court simply cites the Supreme Court’s 2004 ruling in Rasul v. Bush, claiming based on it that “the Supreme Court specifically recognized a Guantanamo detainee’s right to constitutional protections as early as 2004” (slip op. at 8). That is an astonishing misstatement; Rasul was, famously, a matter of statutory interpretation involving the federal habeas statute, not any constitutional claim. True, Justice Stevens included a footnote in Rasul stating:
Petitioners’ allegations–that, although they have engaged neither in combat nor in acts of terrorism against the United States, they have been held in Executive detention for more than two years in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing–unquestionably describe “custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Cf. United States v. Verdugo-Urquidez,494 U.S. 259, 277—278 (1990) (Kennedy, J., concurring), and cases cited therein.
That bit of ambiguous dicta is an extremely thin thread from which to hang the claim that it was clearly established from 2004 onward that GTMO detainees had constitutional rights, particularly bearing in mind that the Suspension Clause issue alone would take another four years of litigaiton (including, along the way, a Circuit Court ruling rejecting such claims). In any event, the Hamad court’s pincite to Rasul does not refer to this footnote in any event, but rather to the core statutory holding on access to habeas (i.e., it cites to page 481 of the opinion, not page 483 n. 15), suggesting that the Hamad court did not necessarily mean to rely on the footnote.
The court’s engagement with the substance of the alleged Fifth Amendment violation itself also is troubling. First, it is not clear whether the court means to suggest merely that it would violate the Fifth Amendment to take more than two years to effectuate a transfer out of GTMO after an ARB determines that a person can be released, or more broadly that detention without criminal charge at GTMO is itself unconstitutional from the outset. The latter position obviously would be incorrect, given the now sprawling body of habeas decisions affirming the legality of military detention in the abstract. The former position is a much more interesting question, in contrast, but the premise seems flawed in this instance.
The court seems to operate on the assumption that the government conceded circa 2005 that it had no right to hold Hamad. The ground for that assumption? An ARB determination recommending Hamad for release. This would make sense if the nature of an ARB was, as with a CSRT, to determine baseline eligibility for detention. But though the court explicitly describes the ARB system as if the idea was to reconsider CSRT determinations, that is not at all how these two distinct systems functioned. The CSRT system decided eligibility for detention, and barring habeas review this was to be the final word on the subject. The ARB system, in contrast, assumed that a person was eligible for continued detention in theory, but sought to determine which detainees might nonetheless be transferred or released on the ground that they did not seem personally dangerous (which was not the touchstone of the underlying detention eligibility inquiry, for better or worse; that inquiry was about membership in or support for al Qaeda, the Taliban, etc.) and did not continue to have intelligence value.
Setting all that aside—that is, let’s assume that the Fifth Amendment applied and that the ARB determination was the equivalent to an acquittal–there is the question of whether a two-year delay from the time of an ARB decision until the moment of transfer would clearly violate due process. Well, have a look at the procedures governing the ARB process at that time, here, and pay particular attention to the decision flowchart on page 4. The ARB panel decision is step one in a rather long and involved process, to say the least, and the panel decision is by no means the last word in that system. Some considerable period of delay is built into this system, even prior to the opening of diplomatic negotiations to actually effectuate a transfer (which apparently took up nearly a year of the period of delay at issue in this instance).