U.S. Report Addresses Concern Over Obama’s Plan to Close Guantánamo
By CHARLIE SAVAGEMAY 15, 2014
WASHINGTON — The Obama administration’s legal team has told Congress that if Guantánamo Bay detainees were relocated to a prison inside the United States, it is unlikely that a court would order their release onto domestic soil.
In a nine-page, unclassified report delivered late Wednesday, the Justice Department and the Pentagon expressed confidence that existing law provided “robust protection of the national security.” It added that Congress could also take steps to further reduce any legal risk that detainees transferred to the United States could be released.
Under President Obama’s plan to close the Guantánamo prison, detainees who are deemed too difficult to prosecute but too dangerous to release would continue to be held in indefinite detention somewhere else. In Mr. Obama’s first term, his national security team considered sending them to a high-security prison in Standish, Mich., or Thomson, Ill., before Congress prohibited transferring them onto domestic soil for any reason.
Lawmakers required the executive branch to produce the report in last year’s National Defense Authorization Act. Its release comes as the Obama administration is seeking to persuade Congress to lift the statutory ban on bringing Guantánamo detainees into the United States in this year’s version of the law.
The report, the result of several months of interagency legal policy deliberations, reads like a legal brief that the Justice Department might file if detainees were brought to a prison on American soil and a lawyer for one of them sought a judicial order freeing his client.
“There are a number of statutory provisions that should render Guantánamo detainees relocated to the United States inadmissible under the immigration laws,” it said. “Such inadmissible aliens should generally have a limited set of statutory and constitutional rights, even when they are physically present in the United States.”
It added that for such people detained as wartime prisoners, “any arguably applicable constitutional provisions should be construed consistent with the individuals’ status as detainees held pursuant to the laws of war, and the government’s national security and foreign policy interests and judgments should be accorded great weight and deference by the courts.”
The report works through a series of legal defenses the government would muster, including that the laws of war permit the indefinite detention of such prisoners and do not make them eligible to invoke immigration or asylum law. And even if a court nevertheless ruled that the prisoners were able to invoke those laws, it says, they restrict the release of noncitizens who are deemed potential threats to public safety or who may have committed serious crimes abroad.
The hardest question raised by detention law is what should happen if a judge orders a detainee freed because the laws of war no longer permit his detention — either because the armed conflict is over or because the facts do not support the conclusion that he was an enemy fighter — but he cannot legally be repatriated because it is more likely than not that his home country’s government would torture him.
In such a situation, the United States could resettle the detainee in a third country. But a difficult situation would arise if no other country was willing to take him. Such resistance plagued efforts to release a group of ethnic Uighur Chinese detainees whom a court had ordered freed from Guantánamo.
In a 2001 case, Zadvydas v. Davis, the Supreme Court ruled that the government could not keep detaining people it was having difficulty deporting for longer than six months, absent special circumstances. But the new report argues that a wartime detainee who was deemed a potential threat to national security would probably qualify as an exception to that rule. It also notes that Congress tightened limits on releases after that ruling and could do so in additional ways.
In statements, lawmakers on each side of the question of whether to close the Guantánamo prison portrayed the legal issues in the report as supporting their views.
“I remained concerned we would wind up with terrorists released and taking up residence in the United States,” said Representative Howard (Buck) McKeon, the California Republican who is the chairman of the House Armed Services Committee. “The only hedge against this outcome is the attorney general’s unrealistic hope for favorable outcomes in court on a host of complex and novel immigration issues.”
But Senator Patrick J. Leahy, the Vermont Democrat who leads the Senate Judiciary Committee, focused on the arguments the government could muster against a ruling to release a detainee, saying the report “lends further support for lifting the congressional ban on transferring Guantánamo detainees to the United States for detention or trial — and should end any speculation that doing so would somehow endanger our nation.”