Detention & Guantanamo

On the Rights of GTMO Detainees Upon Transfer to the United States

By Wells Bennett
Thursday, May 15, 2014, 3:05 PM

Back in February, I noted a provision tucked away in last year's National Defense Authorization Act: Section 1039, which obligated the Administration to study and report back to the House and Senate Judiciary Committees on "the legal rights, if any, for which an individual detained at Guantanamo … if transferred to the United States, may become eligible, by reason of such transfer."  In particular, the provision instructed the executive branch to examine the extent to which a transferred detainee might become eligible for: relief from removal pursuant to the Convention Against Torture; release from immigration detention, including pursuant to the Supreme Court's Zadvydas v. Davis ruling; asylum or withholding of removal; or "any additional constitutional right."

Today we learn, courtesy of this story by the New York Times's Charlie Savage, that the Administration has submitted its answers to congressional overseers.  From the opening to the Administration's report:

As required under section 1039, this report considers whether a Guantanamo detainee relocated to the United States could be eligible for certain forms of relief from removal or release from immigration detention or could have related constitutional rights.' The analysis provided below demonstrates that existing statutory safeguards and executive and congressional authorities provide robust protection of the national security.

Historically, the courts have treated detainees held under the laws of war who are brought to the United States as outside the reach of the immigration laws. In addition to the relevant case law, Congress separately has the authority to expressly provide by statute that the immigration laws generally, or the particular forms of relief identified in section 1039(b)(1 )(A)-(C), are inapplicable to any Guantanamo detainees held in the United States pursuant to the Authorization for Use of Military Force ("AUMF") as informed by the laws of war. The AUMF provides authority to detain these individuals within the United States and transfer them out of the United States. Assuming that detainees are held in the United States by the Department of Defense pursuant to the AUMF, and that the immigration laws do not apply to their detention or subsequent transfer abroad, Guantanamo detainees relocated to the United States would not have a right to obtain the relief described in section 1039(b)(1)(A)-(C).

Even in a scenario where a relocated Guantanamo detainee were in removal proceedings under the Immigration and Nationality Act ("INA"), there are numerous bars to the relief identified in section l039(b)(1)(A)-(C). As described in greater detail below, the INA and federal regulations include various bars to obtaining relief on national security and other grounds, and provide legal authority to hold a detainee in immigration detention pending removal. We are not aware of any case law, statute, or constitutional provision that would require the United States to grant any Guantanamo detainee the right to remain permanently in the United States, and Congress could, moreover, enact legislation explicitly providing that no such statutory right exists.