Coming to America? Obama's Limited Options for Holding Guantanamo Detainees

JURIST Guest Columnist Andrew J. Puglia Levy, an attorney in Washington D.C. who served in the US Department of Homeland Security from 2006-2009, most recently as deputy general counsel, says the risks of bringing some Guantanamo detainees to the United States are significant because the Obama Administration's legal options for holding them here are limited and problematic....



"The President would never allow it. Our judicial system would never allow it....In fact, I think it is beyond the realm of possibility." So said Senator Dick Durbin to critics of the Obama Administration's decision to transfer former Guantanamo Bay detainee Ahmed Khalfan Ghailani to the United States to face trial in federal court.

The Illinois Senator was responding to concerns that detainees like Ghailani (who is accused of being involved with the 1998 U.S. embassy bombings) could be acquitted and set free in the United States. But dismissing these concerns reflects a misunderstanding of the legal framework that will govern the Administration's recent decisions. Although trying detainees in Article III courts is President Obama's prerogative, and although doing so may be the appropriate route for some cases, this strategy must acknowledge the real risk that alleged terrorists could be acquitted or could receive short sentences. Recent reports that President Obama is considering an executive order authorizing the indefinite detention of alleged terrorists suggest that he recognizes the current problem.

It is impossible to predict with certainty the result of any trial, let alone those involving such novel circumstances. Many of the detainees at Guantanamo Bay were captured in connection with combat overseas. For those whom the Administration decides it can try, their cases therefore come with the myriad challenges associated with turning battlefield encounters into successful federal cases, including the admissibility and availability of evidence and ensuring the protection of classified sources and methods.

Widespread allegations of detainee mistreatment as well as the recently released Justice Department memos, which set forth the legal justification for enhanced interrogation techniques, only make these cases more vulnerable. They provide traction for defense arguments that detainee statements were coerced, and they could undermine jurors' overall confidence in the government's case. These potential problems may explain the Administration's reported new policy of reading Miranda rights to terrorists captured abroad—something that makes sense if your paramount concern is building a case, not fighting terrorism.

Military commissions are one viable alternative to trials in federal court, in part because they can more easily incorporate procedural and evidentiary rules to lessen some of these challenges. But while the Administration's decision to restart military commissions at Guantanamo Bay is welcome news, these commissions cannot all be completed before the President's January 2010 deadline for closing the base.

At that point, the White House will have serious options to consider. The Executive Order setting the deadline for closure contains a provision authorizing transfer of all remaining detainees to "another United States detention facility." That leaves open the possibility that detainees could be transferred to another oversees U.S. facility, an alternative the Administration may be grateful to have. More likely, though, the remaining military commissions will take place in the United States.

Even these proceedings are not immune from risk, however. Salim Ahmed Hamdan, Osama Bin Ladin's driver, was sentenced by a military commission jury to only 66 months and was given credit for the 61 months he had already spent at Guantanamo Bay. He was then sent to Yemen and is now free.

Regardless of whether the detainees are tried in federal court or by military commission, there is no federal law that expressly permits the government to indefinitely detain them in the United States in the event that they are acquitted or complete a court-ordered sentence. The fact that those at Guantanamo Bay are not U.S. citizens is of little significance because the immigration laws do not provide a guaranteed backstop either. Once detainees are here, it is more difficult, for both legal and policy reasons, to remove them. Over the years, the government has been forced to release convicted violent criminals when their home countries would not take them back or when the United States had concerns that the country would torture them upon return. In these cases, no acceptable third country was available.

Consider the case of Ha Tran, a Vietnamese refugee with a history of mental illness, who murdered his wife in the presence of their seven-year-old daughter, pled guilty, and was sentenced to eighteen to twenty years in prison. Before completing his sentence, he was transferred to immigration custody and placed in deportation proceedings. When the government was unable to effectuate his removal, a federal court of appeals granted his habeas corpus petition and ordered his release. Such an outcome is troublesome enough in an ordinary criminal case like Tran's. It is obviously more so in the case of those who are reasonably expected to pose (indeed, are committed to posing) a continuing threat.

One possible safety valve is a provision buried in the PATRIOT Act geared toward alien terrorists picked up in the United States and pending removal, but it is likely to face its own legal challenges. The provision allows for the indefinite detention of suspected terrorists on review and certification by the attorney general that they pose a risk to national security. Yet, to my knowledge, this authority has never been used. It is an extraordinary power that would undoubtedly be challenged in the courts. And its availability is particularly unclear if an individual has already been cleared of terrorism-related charges.

To suggest that, despite this lack of reliable law, the President "would never allow" alleged terrorists to be set free in the United States ignores legal reality — or at least the version of legal reality President Obama has embraced so far. If he goes forward with an executive order allowing for the indefinite detention on U.S. soil of those Guantanamo Bay detainees who are too dangerous to release, he will be adopting a position advanced by the Bush Administration. That argument, that the President retains certain inherent constitutional authority as commander-in-chief in the war on terror, was maligned by some at the time, including Senator Durbin. At Justice Alito's confirmation hearing, he referred to the notion of a unitary executive, including as a basis for indefinite detention, as a "marginal theory at best."

An executive order may be a useful stop-gap measure, but it is not clear that the current Supreme Court would be willing to accept the Administration's interpretation of executive power. Rather than allow Supreme Court review of cases in which alleged terrorists had been detained in the United States without charge based on a presidential determination that they were "enemy combatants, the Bush Administration and, more recently, the Obama Administration, transferred the cases for trial in federal court.

In lieu of an executive order, the Administration could work with Congress to pass a law authorizing this kind of detention, another option it is reportedly considering. A workable preventative detention law would be an important homeland security tool going forward, and providing for judicial review in the form of a national security court could increase the chances of such a law surviving legal challenge.

Bringing detainees here comes with risks nonetheless. The Supreme Court has shown an increased willingness to delve into war on terror decisions, as well as a refusal to automatically defer to the national security assertions of the President (or Congress). Considering the stakes, President Obama may not want to allow the only thing preventing dangerous detainees from walking the streets to be a newly enacted law that the Court could strike down.


Andrew J. Puglia Levy, an attorney in Washington, was deputy general counsel of the Department of Homeland Security in the Bush Administration.
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