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The Constitutional and Political Clash Over Detainees and the Closure of Guantanamo

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The Constitutional and Political Clash Over Detainees and the Closure of Guantanamo UNIVERSITY OF PITTSBURGH LAW REVIEW Vol. 74 ● Winter 2012 PRISONERS OF CONGRESS: THE CONSTITUTIONAL AND POLITICAL CLASH OVER DETAINEES AND THE CLOSURE OF GUANTANAMO David J.R. Frakt ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2012.195 http://lawreview.law.pitt.edu This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. This site is published by the University Library System of the University of Pittsburgh as part of its D- Scribe Digital Publishing Program and is cosponsored by the University of Pittsburgh Press. PRISONERS OF CONGRESS: THE CONSTITUTIONAL AND POLITICAL CLASH OVER DETAINEES AND THE CLOSURE OF GUANTANAMO David J.R. Frakt Table of Contents Prologue ............................................................................................................... 181 I. Introduction ................................................................................................. 183 A. A Brief Constitutional History of Guantanamo ................................... 183 1. The Bush Years (January 2002 to January 2009) ....................... 183 2. The Obama Years (January 2009 to the Present) ........................ 192 a. 2009 ................................................................................... 192 b. 2010 to the Present ............................................................. 199 II. Legislative Restrictions and Their Impact ................................................... 205 A. Restrictions on Transfer and/or Release to Third Countries ............... 206 1. Court-Ordered Transfers ............................................................. 207 2. Voluntary/Discretionary Transfers ............................................. 212 B. Restrictions on Countries to Which Detainees Could Be Transferred .......................................................................................... 214 C. Restrictions on Release in the U.S. ..................................................... 218 1. Prosecution in Federal Courts ..................................................... 219 2. Law of War Detention ................................................................ 222 3. Release into the U.S. ................................................................... 223 D. Restrictions on Detainees Facing Trial by Military Commission ....... 225 E. Restrictions on Periodic Review Boards ............................................ 229 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2012.195 http://lawreview.law.pitt.edu 179 U NIVERSITY OF P ITTSBURGH L AW R EVIEW P AGE | 180 | V OL. 74 | 2012 III. Constitutionality of Restrictions .................................................................. 230 A. Two Views of the Commander in Chief Power .................................. 231 B. Specific Restrictions ............................................................................ 238 1. Restrictions on Transfer to Third Countries ............................... 238 a. Court-Ordered Transfers .................................................... 238 b. Voluntary/Discretionary Transfers ..................................... 240 C. Restrictions on Countries to Which Detainees Could Be Transferred .......................................................................................... 242 D. Restrictions on Transfer to the U.S. for Trial ...................................... 244 IV. Conclusion ................................................................................................... 252 Author’s Postscript ............................................................................................... 260 ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2012.195 http://lawreview.law.pitt.edu P RISONERS OF C ONGRESS P AGE | 181 Prologue On July 24, 2009, the Department of Justice did something very unusual, it informed the United States District Court for the District of Columbia that my client Mohammed Jawad, a Guantanamo detainee, was no longer considered “detainable” (i.e., there was no lawful basis to detain him).1 The Department of Justice attorneys requested that the court fashion “appropriately tailored relief” and grant Jawad’s petition for a writ of habeas corpus.2 A few days later, the Department submitted a proposed order to the district court judge granting the writ and ordering Jawad’s release to “the receiving country” (Jawad’s home country of Afghanistan).3 But, there was a slight catch. Even though the United States had determined that Jawad was “no longer detainable,” they proposed that he continue to be held at Guantanamo for another twenty-two days.4 Over counsel for the petitioner’s objection to the delay,5 the district court adopted the proposed order.6 The reason for the delay was a section of a supplemental appropriations bill,7 passed just five weeks earlier, which required that Congress be provided written notice, including a risk assessment, fifteen days prior to the use of any defense funds for the release or transfer of any Guantanamo detainee.8 The Department of Justice lawyers claimed 1 Notice That Respondents Will No Longer Treat Petitioner As Detainable Under the AUMF and Request for Appropriately Tailored Relief, Halmandy v. Obama, No. 05-cv-2385-ESH (D.D.C. July 24, 2009), ECF No. 311 [hereinafter Respondents’ Notice]. 2 Id. 3 Proposed Order and Judgment, Halmandy v. Obama, No. 05-cv-2385-ESH (D.D.C. July 29, 2009), ECF No. 319 [hereinafter Proposed Order]. 4 Id. This twenty-two-day delay was a significant reduction from what the government initially proposed in its July 24 notice. Respondents’ Notice, supra note 1, at 3–4 (asserting that “in order to give effect to any order to transfer the Government will require a period of several weeks to prepare Mr. Jawad’s records.”) 5 Petitioner’s Response to Respondents’ Notice That Respondents Will No Longer Treat Petitioner As Detainable Under the AUMF and Request for Appropriately Tailored Relief, Halmandy v. Obama, No. 05-cv-2385-ESH (D.D.C. July 28, 2009), ECF No. 314 (asserting that Jawad could, and should, be transferred immediately to the Government of Afghanistan or a neutral party such as the ICRC to effectuate transfer without expenditure of appropriated funds). I was co-counsel, along with the ACLU, on the habeas corpus case. 6 Order, Bacha v. Obama, No. 05-cv-2385-ESH (D.D.C. July 30, 2009), ECF No. 323. 7 Supplemental Appropriations Act, Pub. L. No. 111-32, § 14103, 123 Stat. 1859, 1920–21. This bill was enacted on June 24, 2009. Id. 8 Id. The full text of § 14103 (e): ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2012.195 http://lawreview.law.pitt.edu U NIVERSITY OF P ITTSBURGH L AW R EVIEW P AGE | 182 | V OL. 74 | 2012 they needed seven days to prepare the classified notice. As counsel for petitioner, we suggested that no funds would be expended in order to effectuate the release of Mr. Jawad, as the government of Afghanistan had expressed a willingness to send a plane to Guantanamo to return him home. This suggestion was derided by the United States attorneys, who asserted that even opening the door to Jawad’s cell involved an expenditure of federal funds. The judge noted that, in any event, she had no power to order the military to allow a plane from Afghanistan to land at the Guantanamo naval base, and granted the writ subject to the government’s requested timeline. Even though both the executive and judicial branches concurred that there was no lawful basis to detain Jawad, he remained confined at Guantanamo for another twenty-two days as a direct result of an act of Congress. Thus, with the signing of his order of release,9 Jawad became the first10 detainee to be held at Guantanamo as a “Prisoner of Congress.” He was not to be the last. Indeed, dozens of detainees at Guantanamo have become Prisoners of Congress, their releases or transfers delayed or barred by spending restrictions imposed by the legislative branch. In this article, I will discuss the series of increasingly stringent legislative restrictions placed on the transfer or release of Guantanamo detainees from 2009 to None of the funds made available in this or any prior Act may be used to transfer or release an individual detained at Naval Station, Guantanamo Bay, Cuba, as of the date of enactment of this Act, to the country of such individual’s nationality or last habitual residence or to any other country other than the United States, unless the President submits to the Congress, in classified form 15 days prior to such transfer, the following information: (1) The name of any individual to be transferred or released and the country to which such individual is to be transferred or released. (2) An assessment of any risk to the national security of the United States or its citizens, including members of the Armed Services of the United States, that is posed by such transfer or release and the actions taken to mitigate such risk. (3) The terms of any agreement with another country for acceptance of such individual, including the amount of any financial assistance related to such agreement. Id. at 123 Stat. 1921. 9 Order, Halmandy v. Obama, No. 05-cv-2385-ESH (D.D.C. July 30, 2009), ECF No. 323 [hereinafter Order], available at http://www.aclu.org/files/pdfs/safefree/sakibachavobama_order.pdf. 10 Jawad was the first detainee to be transferred out of Guantanamo after the June 24, 2009 legislation. Several other detainees whose habeas corpus petitions were granted prior to Jawad were transferred
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