On August 15, 2016, the Pentagon announced that it had transferred 15 detainees held at the Detention Facility at the Guantánamo Bay naval base in Cuba (GTMO, or Gitmo) to the United Arab Emirates—the largest single transfer of detainees of the Obama administration. This transfer is part of President Obama’s new diplomatic push to persuade other countries to accept detainees in a last-minute effort to fulfill his 2008 campaign promise to close Gitmo for good.
Yet several high-level detainees like Khalid Sheikh Mohammed—the “mastermind” of 9/11—remain, while 31 detainees are still being held in indefinite law-of-war detention and have not yet been recommended for transfer. Meanwhile, some lawmakers have warned: “In its race to close Gitmo, the Obama administration is doubling down on policies that put American lives at risk.”
The Gitmo detention facility was created after the September 11 attacks to house suspected combatants captured during the war in Afghanistan. The first detainees arrived in January 2002. As the conflict waged, more detainees arrived; but controversies arose over their indefinite detention and legal status, leading to several landmark Supreme Court decisions. Gitmo has indeed sparked many important constitutional debates: from procedural issues concerning the length of time detainees have been held without charge—over 14 years in some cases—and civil rights concerns for detainee treatment, to conflicts among the executive, legislative, and judicial branches over Gitmo policy.
In a recent podcast, Karen Greenberg and John Yoo debated Gitmo’s constitutional issues, discussed below, in greater detail.
Article I
Most detainee litigation has centered on Article I, Section 9, Clause 2—the Suspension Clause, which describes the circumstances (“when in Cases of Rebellion or Invasion the public Safety may require it”) by which the right of habeas corpus may be suspended (most agree by Congress). In early 2002, the Center for Constitutional Rights (CCR) began to file habeas petitions on behalf of Gitmo detainees, challenging the U.S. government’s right to hold them indefinitely.
In 2004, the Supreme Court ruled in Rasul v. Bush that federal courts have jurisdiction over Gitmo habeas petitions, but in Hamdi v. Rumsfeld found that Congress’s 2001 Authorization for Use of Military Force (AUMF) authorized law of war detention for enemy combatants, noting that detention is a “fundamental . . . incident to war.” The Hamdi plurality emphasized the “limited category” of individuals it was considering “for the duration of the particular conflict in which they were captured”; and as an American citizen held in the United States, Yasir Hamdi had the right to challenge his designation in this category.
Justice Scalia dissented in both cases. In Rasul he argued that the Court went too far in erroneously extending habeas “to aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its courts”; but in Hamdi he argued that it had not gone far enough—there was no military exigency requiring the detention of an American citizen without charge: either Congress must suspend the writ, or Hamdi must be tried under criminal law. As Scalia explained: “No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause.”
Responding to the due process guidelines set forth in Hamdi, the President created tribunals to determine Gitmo detainees’ enemy combatant status, but these were held to be unlawful in Hamdan v. Rumsfeld (2006). Finally, Congress passed the Military Commissions Act (MCA) in 2006, reestablishing military tribunals while attempting to strip courts of the power to consider habeas petitions for enemy combatants held outside the United States. But in another landmark ruling, Boumediene v. Bush (2008), the Court held that the Suspension Clause had “full effect at Guantánamo Bay,” and that the jurisdiction-stripping provision of the MCA was an unconstitutional suspension of the writ. If Congress wanted to deny habeas to detainees, Justice Kennedy wrote, then “Congress must act in accordance with the requirements of the Suspension Clause.” Otherwise, Gitmo prisoners have a constitutional right to challenge their detention in U.S. courts.
Justice Scalia dissented here as well, finding that the Suspension Clause did not apply: “The writ of habeas corpus does not, and never has, run in favor of aliens abroad,” he wrote.
Article II
After 9/11, the Justice Department argued for an expansive view of Executive power to enable the President “to take whatever actions he deems appropriate to pre-empt or respond to terrorist threats from new quarters,” as John Yoo, then-deputy assistant attorney general, wrote. For instance, the doctrine of “extraordinary rendition” was justified on the basis that “the President has plenary constitutional authority, as the Commander in Chief” to transfer aliens being held outside the United States to third countries for the purposes of extrajudicial detention and interrogation.
The Supreme Court in Hamdi focused on the AUMF as statutory authority for detaining enemy combatants and did not address the President’s Article II power to do so. But in Hamdan, the Court limited presidential power by invalidating executive military commissions that bypassed both Congress and the judiciary. Hamdan explained the important separation and balance of powers in war making: that Article II, Section 2, Clause 1 of the Constitution “makes the President the ‘Commander in Chief’ of the Armed Forces, but vests in Congress the powers to ‘declare War … and make Rules concerning Captures on Land and Water,’ … to ‘raise and support Armies,’ to ‘define and punish … Offences against the Law of Nations,’ and ‘To make Rules for the Government and Regulation of the land and naval Forces.’” Legal commentators also emphasized the deliberate structural divisions of power the Framers envisioned as a crucial check on “unfettered” Executive action—even in the face of potential national security threats.
Separation of powers concerns have likewise been implicated in Obama’s recent push to close Gitmo. Congress, which controls the “power of the purse,” has tied spending bills with prohibitions on Gitmo detainees being brought to U.S. soil—even for prosecution. Though Obama has suggested he could override this prohibition with an executive order, others have cautioned against executive overreach which could “cross a red line and shatter the system hardwired into the Framers’ Constitution.”
Bill of Rights
Finally, while some assert that Gitmo detainees have no constitutional rights, others insist that Bill of Rights provisions from the Fifth to the Eighth Amendments should apply to them.
In Boumediene, the Court did not rule on whether Gitmo detainees have any Fifth Amendment rights. But in Hamdi, the Court held that the Fifth Amendment’s due process guarantees gave Hamdi, an American citizen, the right to contest his designation as an enemy combatant before a neutral decision maker.
Some advocacy groups like CCR have further argued that the Eighth Amendment’s prohibition on cruel and unusual punishment (as well as international law) protects detainees from inhuman or degrading treatment and torture. If detainee trials do eventually proceed, however, how a court might evaluate mistreatment claims is an open question.
Conclusion
At its height in June 2003, Gitmo housed over 660 detainees; as of August 2016, 710 total detainees have been transferred out. But though many have left, with more transfers pending, 61 detainees remain. Gitmo remains a constitutional and political enigma, and its end is not quite yet in sight.
Lana Ulrich is associate in-house counsel at the National Constitution Center.
