Cautionary Notes on the Department of Justice’s Guantanamo Assessment

The Department of Justice, per the directive given in Section 1039 of last year’s National Defense Authorization Act (NDAA), has released its assessment of whether transferring Guantanamo Bay detainees to the United States could result in their release onto US soil.  As one might imagine, the report concludes that we shouldn’t have any problem.

To summarize, the report first states that because the detainees are being held under the laws of war per the Authorization of Use of Military Force (AUMF), U.S. immigration laws do not apply to their detention, and that therefore they would not be able to avail themselves of any laws that might otherwise provide opportunities for release into the United States.

The report goes on to argue that even if the immigration laws were deemed to apply to these detainees, those laws contain safeguards that would prevent their admission into the United States.

Two observations:

1. Charlie Savage at the New York Times writes “the report…reads like a legal brief that the Justice Department might file if detainees were brought to a prison on American soil and a lawyer for one of them sought a judicial order freeing his client.”  He is right in the sense that the DOJ report is not the definitive last word on the subject of whether the United States would have to release Gitmo detainees onto US soil – rather, it is the collection of the Department’s arguments against such an outcome.  Once the question actually goes before a federal judge, there are no guarantees – former Chief Assistant U.S. Attorney for the Southern District of New York, Andrew C. McCarthy, has previously written about what a judge may be capable of concluding in the context of terrorist detainees captured on the battlefield.
2. Lately in the House of Representatives and Senate there has been increased talk of revisiting the AUMF, including by Senate Majority Leader Harry Reid.  That could be a welcome development provided such deliberations result in a strengthening (expansion in recognition of the evolution of the al Qaeda threat) rather than weakening (contraction or outright repeal) of it.  If we wind up with the latter, however, the “laws-of-war as barrier to release in the U.S.” argument gets a whole lot weaker, since the hostilities that trigger the application of the laws of war to these detainees will be declared over (albeit prematurely.)