Detention: Law of: Legislative Development

The Obviously Unconstitutional Cotton Amendment

By Steve Vladeck
Thursday, June 19, 2014, 4:30 PM

Among the proposed amendments to the DOD appropriations bill currently under consideration in the House of Representatives is this doozy, courtesy of Arkansas Rep. Tom Cotton:

None of the funds appropriated or otherwise made available by this Act may be used to transfer or release any individual detained at United States Naval Station, Guantanamo Bay, Cuba to the individual’s country of origin or to any other foreign country.

When combined with the existing statutory bar on transfers into the United States, the effect of the Cotton Amendment, if passed, would be to effectively bar the release of any of the Guantánamo detainees to anywhere—even in cases in which (1) a court has ordered a detainee’s release; or (2) the Executive Branch has determined that it no longer has the authority to hold a detainee.

It’s not a remotely close question whether this amendment, if enacted, would be constitutional as applied to such cases. It wouldn’t be. Wholly apart from the ongoing debate over the President’s power to transfer or release detainees, the Cotton Amendment would quite clearly violate the Suspension Clause, as interpreted by the Supreme Court in Boumediene v. Bush:

when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release.

By that logic, a statute that prevents the federal courts from effectuating a prisoner’s release, or that prevents the President from releasing a detainee whose continuing confinement the government no longer seeks, would run afoul of a provision that clearly applies to the Guantánamo detainees. [Insofar as such a statute thereby authorized a form of continuing indefinite detention without any substantive or procedural standards, it would likely also raise serious due process questions, as well—at least insofar as the detainees have due process rights.]

It’s true, of course, that the D.C. Circuit in the Uighur litigation held that a right to release is not the same thing as a right to release into the United States. But four Justices, including Justice Kennedy, later expressed skepticism of that result in cases “where no other remedy is available.” In the Uighur cases, this wasn’t an issue because another remedy was available—through the Executive Branch’s legislatively unimpeded decision to transfer them to a foreign country.

But if the Cotton Amendment becomes law, then no other remedy would be available, and so the courts would have no choice.