More on S. 3707 from Peter Margulies

By Benjamin Wittes
Monday, September 13, 2010, 9:00 PM

Peter Margulies, author of Law’s Detour: Justice Displaced in the Bush Administration, who previously offered these comments on S. 3707 and future dangerousness weighs in on the bill's transfer provisions as well. He largely defends the provision but suggests clarifying language to make sure it is not read to preclude bringing detainees cleared in habeas cases to the United States for criminal trial. Once again, I have added some links:

Section h(1)(B) of S. 3707 appropriately limits judicial authority to order detainees’ release into the United States, but creates ambiguity because it does not address whether the government can bring detainees to the United States for criminal prosecution.  An earlier appropriations bill expressly preserved this option.  See David Stout, House Allows Guantanamo to Transfer Some to U.S., N.Y. Times, Oct. 16, 2009, A17.  That is the better course to remove ambiguity, promote sound counterterrorism policy, and preserve the separation of powers.

Section (h)’s express limits on judicially-ordered release into the United States pass constitutional muster.  The Supreme Court has repeatedly held that broad congressional power over admission of aliens is necessary for the effective conduct of foreign policy.  In Harisiades v. Shaughnessy, 342 U.S. 580 (1952), the Court noted that congressional authority facilitated negotiations with other countries about their treatment of American citizens.  Congressional power over this realm is also a logical corollary of Congress’ Article I power to set criteria for naturalization; Congress’ ability to shape criteria for citizenship would be impaired if Congress could not also control admission of noncitizens.  Finally, as the Court’s decision in Plyler v. Doe and the current controversy over Arizona’s immigration law demonstrate, congressional authority is necessary to prevent the states from enacting a patchwork quilt of immigration regulation.  The case law makes clear that executive transfer of persons to places under United States control, including Guantanamo, cannot abrogate power that rightfully belongs to Congress. 

Congressional control over admission of foreign nationals is also a salient feature of what Peter Raven-Hansen and Bill Banks have elsewhere called customary national security law. As a historical matter, the President has consulted with Congress when foreign policy concerns counseled for admission of foreign nationals to the United States.  Congress made special provisions for the admission of Holocaust refugees after World War II, Cambodians after the Vietnam War, and Iraqis after American intervention in that country.   See Refugee Crisis in Iraq Act of 2007, 8 U.S.C. §1157 note, Pub. L. 110-81, 122 Stat. 397 (providing special procedures and monitoring for Iraqi refugees).  Congressional input into admission of Guantanamo detainees is consistent with this trend.

The Suspension Clause, as interpreted by the Supreme Court in Boumediene v. Bush, does not trump Congress’ power.  In Boumediene, Justice Kennedy wrote that “release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted.”  See Boumediene v. Bush, 128 S. Ct. 2229, 2266 (2008).  Release is appropriate where the government can return a detainee to his country of origin.  However, when the government’s non refoulement duties preclude this step, the Suspension Clause does not require that the United States admit the detainee.  As the Court suggested in Munaf v. Geren, in upholding the transfer to Iraqi custody of a detainee held by American forces, judicial deference is appropriate on the delicate foreign policy issues raised by detainee transfers, absent evidence of American officials’ knowledge of substantial grounds for a detainee’s fear of torture.  When Guantanamo detainees like the Chinese-national Uighurs have been unable to return safely to their country of origin, the government has through diplomatic efforts secured offers of resettlement from third countries, including Bermuda.  As section (f)(3) of S. 3707 provides, the Suspension Clause does not require judicial intervention in such good faith government resettlement efforts. 

Since section (h) of S. 3707 by its terms applies only to detainees ordered released by a court and section (f) of the bill addresses detainees whom the government has designated for release or transfer, ambiguity remains only about detainees slated for trial. Legislation need not address every contingency.  However, legislation as comprehensive as S. 3707 should provide guidance on this important issue. Guidance is particularly important, because the absence of guidance may lead to limits that would clash with the separation of powers and with the Constitution’s Bill of Attainder Clause. 

Bills of attainder come in all shapes and sizes, united by Congress’ singling out of specific individuals for acts they have already committed.  This retrospective element ties together the Bill of Attainder and Ex Post Facto Clauses, which are both included in limits on congressional power in the Constitution’s Article I, sec. 9.  The Framers included a prohibition on bills of attainder because they feared the English practice of punishing specific individuals through government decree.  As the Supreme Court discussed in United States v. Brown, 381 U.S. 437, 441-42 (1965), Parliament and the Crown had enacted bills of attainder that targeted specific persons for penalties, including death, without the bother of trial.  In United States v. Lovett, 328 U.S. 303, 308-09 (1946), the Supreme Court interpreted the Bill of Attainder Clause to prohibit Congress from restricting the pay or employment of specific individuals that legislators deemed to be “unfit.”  The Framers understood that such measures upset the balance maintained by the separation of powers.  To ensure that balance, prosecution must follow the pattern that the Framers preferred:  Congress passes general laws that identify offenses, and prosecutors decide when to bring charges.

A congressional limit on transfers for criminal prosecution would upset this careful balance.  Prosecutors might well believe that a prosecution in a civilian court for terrorism-related offenses would be the most appropriate path for particular detainees.  Federal courts have often handled terrorism cases, with due regard for security concerns.  See Richard B. Zabel & James J. Benjamin, Jr., In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts (2008), available at Since holding a civilian trial at Guantanamo would pose serious legal and logistical problems, a bar on transferring detainees to the United States for criminal prosecution would effectively remove this alternative from the prosecutor’s arsenal.  A bar on civilian trials would also preclude a civilian jury, and make a military commission the sole mode of trial available.  Military proceedings can be fair, but a congressional requirement that they be the sole mode of trial for conduct that has already occurred singles out current detainees for harsh treatment, and therefore would violate the Bill of Attainder Clause.

Limiting civilian trials would be unsound policy, as well.  In a specific case, the executive branch has the information necessary to weigh the choice between civilian trials, military commissions, and detention -- the three modes that President Obama identified in his National Archives speech in May, 2009.  See  Of course, Congress should exercise its oversight responsibilities by seeking information from executive branch officials. Congress has a wealth of tools, including the power of the purse, to signal that it wishes the executive branch to modify its overall approach.  Congress can also legislate on military commissions, as it has done with executive branch input, and on detention, where Senator Graham’s bill makes a strong contribution.  However, legislation that intervenes in specific charging decisions would hamstring the executive branch, as well as violating the Framers’ carefully calibrated scheme of separation of powers.  In an earlier appropriations bill, the House appeared to recognize this, and expressly excluded transfers for criminal prosecution from restrictions.  See Stout, supra.  Based on legal and policy concerns, S. 3707 should follow that example.