University of Richmond Law Review Volume 40 | Issue 3 Article 2 3-1-2006 Leaving Guantánamo: The Law of International Detainee Transfers Robert M. Chesney Wake Forest University School of Law Follow this and additional works at: https://scholarship.richmond.edu/lawreview Part of the Human Rights Law Commons, and the Military, War, and Peace Commons Recommended Citation Robert M. Chesney, Leaving Guantánamo: The Law of International Detainee Transfers, 40 U. Rich. L. Rev. 657 (2006). Available at: https://scholarship.richmond.edu/lawreview/vol40/iss3/2 This Article is brought to you for free and open access by the Law School Journals at UR Scholarship Repository. It has been accepted for inclusion in University of Richmond Law Review by an authorized editor of UR Scholarship Repository. For more information, please contact [email protected]. ARTICLES LEAVING GUANTANAMO: THE LAW OF INTERNATIONAL DETAINEE TRANSFERS Robert M. Chesney * "The real problem is not Guantdnamo Bay. The problem is that, to a large extent, we are in unexplored territory with this uncon- ventional and complex struggle against extremism. Traditional doctrines covering criminals and military prisoners do not apply well enough." -Secretary of Defense Donald Rumsfeld, June 14, 20051 The United States military has had custody of more than 68,000 detainees since 9/11 as a consequence of the war on terror- ism and the war in Iraq.2 The legality of these detentions under * Associate Professor of Law, Wake Forest University School of Law. J.D., 1997, Har- vard University. Portions of this paper were presented to the NORAD/NORTHCOM Staff Judge Advocate's Conference in April 2005, the June 2005 meeting of the Law and Society Association, and the July 2005 Law of War course at the Judge Advocate General's Legal Center and School. Thanks to Bo Cooper, Jennifer Elsea, Michael Kelly, Marty Lederman, Peter Margulies, John Parry, Steve Vladeck, Lieutenant Colonel Mick Waggoner, and Ma- jor Sean Watts for their comments and criticisms. Special thanks to Major General Jay Hood, commander of Joint Task Force-GTMO, and Brigadier General Thomas Heming- way, Legal Adviser to the Appointing Authority, Office of Military Commissions, for their hospitality during a tour of Camp Delta in September 2005. 1. News Transcript, Donald Rumsfeld, U.S. Sec'y of Def., DoD News Briefing with Secretary Rumsfeld and General Pace (June 14, 2005), available at httpJ/www.defense link.mil/transcripts/2005/tr20050614-secdef3042.html. 2. See News Release, U.S. Dep't of Def., Guantinamo Provides Valuable Intelligence Information (June 12, 2005), available at http://www.defenselink.mil/releases/2005/nr2005 0612-3661.html (observing that "[m]ore than 68,000 detainees have been held in Afghani- stan, Iraq and Guantdnamo"). Iraq-related detainees outnumber those from Afghanistan UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 40:657 domestic and international law has been explored exhaustively in scholarship3 and has been the subject of extensive litigation.4 Un- til recently, however, relatively little attention has been paid to a closely related issue: What domestic and international legal frameworks apply to the transfer of a detainee from U.S. custody to the custody of another state, particularly where fear of torture is a concern? This once obscure topic has become the subject of intense de- bate in recent months in connection with the CIA's extraordinary rendition program.5 But the issue also is significant for the U.S. military's detention facility at the U.S. Naval Station at Guantdnamo Bay, Cuba ("GTMO").6 Significant numbers of GTMO detainees already have been transferred to the custody of their own governments, and the Pentagon intends eventually to transfer most of those who remain. Meanwhile, dozens of detain- ees have filed motions seeking advance notice of any such trans- fers, on the theory that such notice will give them an opportunity to then seek a court order barring the transfer on risk-of-torture grounds.7 These preliminary motions have met with mixed re- sults, with the judges largely able to avoid coming to grips with the substantive issues raised by the risk-of-torture issue. Eventu- and elsewhere. See News Transcript, Donald Rumsfeld, U.S. Sec'y of Def., News Confer- ence at the Meeting of NATO Defense Ministers, Brussels, Belgium (June 9, 2005), avail- able at http://www.defenselink.mil/transcripts/2005/tr20050609-secdef3O2l.html. 3. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, CongressionalAuthorization and the War on Terrorism, 118 HARV. L. REV. 2047 (2005); Stephen I. Vladeck, The Detention Power, 22 YALE L. & POL'Y REV. 153 (2004); Ingrid Brunk Wuerth, Authorizations for the Use of Force, International Law, and the Charming Betsy Canon, 46 B.C. L. REV. 293 (2005). 4. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (imposing due process require- ments on the determination of enemy combatant status with respect to citizens). 5. See, e.g., Jane Mayer, OutsourcingTorture, THE NEW YORKER, Feb. 14 & 21, 2005, at 106; Matthew Rothschild, Stripping Rumsfeld and Bush of Impunity, THE PROGRESSIVE, July 1, 2005. 6. The issue is, of course, also significant for other military detention contexts such as the detention facilities in Iraq and Afghanistan. But it is only in the context of GTMO that the law of international detainee transfers has become the subject of extensive litiga- tion on behalf of non-citizen detainees, as described in more detail in Part I, infra. Cf Omar v. Harvey, No. 05-2347 (D.D.C. Feb. 3, 2006) (granting temporary restraining order enjoining the military from transferring a U.S. citizen detainee held in Iraq to the custody of the Iraqi government); Respondents' Opposition to Petitioners' Ex Parte Motion for a Temporary Restraining Order, Omar v. Harvey, No. 05-2347 (D.D.C. Feb. 7, 2006) (urging court to dissolve TRO on ground that persons detained by U.S. military in Iraq are in legal custody of the Multi-National Force-Iraq ("MNF-I") and that U.S. courts lack jurisdiction over MNF-I activities). 7. See infra Part I. 2006] LAW OF INTERNATIONAL DETAINEE TRANSFERS ally, though, these same judges may be forced to determine whether they have authority to regulate or perhaps even prohibit the custodial transfer of a GTMO detainee.8 The relevant law is not well-understood, unfortunately, and the existing legal schol- arship on the topic is too sparse, polarized, and out-of-date to pro- vide guidance.' This article fills the resulting gap in the literature by examin- ing the full range of legal issues-both domestic and interna- tional-presented when the military seeks to transfer a detainee from GTMO to the custody of another state and the detainee ob- jects on risk-of-torture grounds.' ° Part I begins by describing the "first wave" of GTMO transfer litigation-a veritable flood of mo- tions filed by detainees in 2005 seeking preliminary relief in an- ticipation of potential transfers. These motions and the conflict- ing opinions they generated are harbingers of litigation to come, and Parts II-IV explore the laws that will be relevant to that liti- gation. Part II takes up the topic of international human rights law, focusing on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the related issue of "diplomatic assurances." Along the way, I identify complex issues of statutory implementation associated with the Convention Against Torture, including potential Department of Defense obligations under the Administrative Procedure Act. Against this backdrop, Part III addresses the relationship of in- ternational human rights law to the law of war when both apply simultaneously, with particular reference to the lex specialis rule. With this relationship in mind, Part IV then considers the extent 8. For a discussion of the impact of the Detainee Treatment Act of 2005 on this issue see Epilogue, infra Part VII. 9. There are just two articles that directly grapple with the issues raised by GTMO transfers. See Joan Fitzpatrick, Rendition and Transfer in the War Against Terrorism: Guantcnamo and Beyond, 25 LoY. L.A. INT'L & CoMP. L. REV. 457 (2003) (arguing that detainees are not subject to armed conflict concepts with respect to detainee transfers, at least when captured outside a zone of actual combat operations); John Yoo, Transferring Terrorists, 79 NOTRE DAME L. REV. 1183 (2004) (arguing that Article II empowers the Ex- ecutive branch to dispose of the liberty of wartime detainees, in keeping with practices in past, traditional armed conflicts). Both articles are insightful, but have been superseded in important respects by post-publication developments such as the Supreme Court's 2004 decision in Rasul v. Bush, 542 U.S. 466 (2004) (holding that GTMO detainees may invoke federal habeas corpus statute). 10. I do not in this article address these issues as they arise in the context of "extraor- dinary renditions." Cf Arar v. Ashcroft, No. 04-cv-249 (E.D.N.Y.) (filed Jan. 22, 2004) (pending lawsuit filed by Canadian citizen who was allegedly tortured after being ren- dered by United States to Syria). UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 40:657 to which any GTMO detainees may be protected by the handful of transfer rules provided by the law of war. Part V is perhaps the most unexpected section of the article, as it addresses the extent to which substantive due process may provide an alternative re- straint on GTMO transfers-a discussion necessitated by the Su- preme Court's 2004 decision in Rasul v. Bush" and the possibility that the detainees, though non-citizens, have been invested with fundamental constitutional rights by virtue of their location at GTMO. Part VI, originally intended as the conclusion of this arti- cle, criticizes the current state of the law of international detainee transfers both from the perspective of the government and of the detainees, and offers preliminary suggestions for statutory re- form.