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If Guantanamo closes, what then?

If Congress were to give the government the option of closing the military detention facility at Guantanamo Bay and allow prisoners from there to be kept in prisons in the United States, the government will continue to keep them outside of the usual legal system, the Obama administration has told Congress in a new report.  For some, at least, that could mean a continuation of indefinite detention without a trial.

The only ways that a detainee could then gain freedom would be for the government to choose on its own to allow release, or for a federal judge to order release in a habeas case.  But, even a court’s release order, the government made clear in the new report, could not allow the detainee to remain or live in the U.S.

Last year, in passing a new military funding bill, Congress ordered the Justice Department to answer a series of questions about what would happen if Guantanamo detainees were relocated in the U.S. — a move that the Obama administration once planned, but abandoned when Congress stepped in to prohibit it.   The report sent to congressional committees on Wednesday provided the government’s answers.

Much of the nine-page report appeared aimed at persuading skeptics in Congress that the housing of detainees brought from Guantanamo would not be a threat of terrorist violence in this country.  The administration very much wants to close Guantanamo because, among other reasons, it is seen as a symbolic setback for the U.S. in world opinion and a rallying argument for terrorist recruitment.  But that goal has been frustrated by limits that Congress has imposed each year.

Under none of the scenarios that Congress outlined in its request last year — such as putting U.S.-housed detainees into the U.S. immigrant control system, granting them asylum, or giving them protection against being sent to a country where they would be tortured — could result in their gaining any new legal rights, and definitely no right to be released to live in this country, according to the Justice Department.

The detainees, even while on U.S. territory, would still be largely controlled, the nine-page memo stressed, by the government’s interpretation of the “laws of war” and its detention authority under the resolution passed by Congress in the wake of the terrorist attacks of September 11, 2001 (the Authorization for the Use of Military Force).

The Supreme Court has upheld law-of-war detention for the duration of armed conflict, in the government’s view of the 2004 decision in Hamdi v. Rumsfeld.  And, it added, even when the Supreme Court has put limits on how long the government may detain foreign nationals in the U.S. without legal status, the Court has made an exception for reasons of “national security.”  Normally, that kind of immigration-related detention can only last for six months, under the Court’s 2001 decision in Zadvydas v. United States.

While the Justice Department responded to all of the scenarios that Congress outlined, it left no doubt that its own view is already settled that detainees from Guantanamo would not be put into the immigrant-control system and would have no eligibility for exceptions to deportation.  The report did suggest that Congress might wish to consider passing new laws to reinforce that view.

The government stressed that it continues to follow the policy, in deciding which other country might be a destination for a detainee released from Guantanamo, that it will not send an individual to a country where there is a real prospect of the individual being tortured.

(The blog thanks Howard Bashman of How Appealing blog for a tip to the filing of this report, and it thanks The New York Times for a link to the document.)





Recommended Citation: Lyle Denniston, If Guantanamo closes, what then?, SCOTUSblog (May. 16, 2014, 2:02 PM),