Shortly after he took office in 2009, President Obama issued an executive order to close the military detention facility at Guantanamo Bay, Cuba. At that time, the United States was holding over 200 detainees at the facility, most of whom had already been detained for at least several years. In his executive order, the President noted “the significant concerns raised by these detentions, both within the United States and internationally” and argued that “closure of the facilities [at Guantanamo] . . . would further the national security and foreign policy interests of the United States and the interests of justice.” The President ordered that the detention facility be closed within one year, by January 2010. But that deadline came and went, and Guantanamo stayed open.
What went wrong? Put simply, the Administration could not find a new place for all of the detainees to go. Individuals held at Guantanamo Bay are detained as “enemy combatants” under the laws of war, and their detention may continue as long as hostilities persist. If the United States government wishes to remove a detainee from indefinite law-of-war detention, it has two options. It can either charge the detainee with a crime before a military commission or a civilian court, or it can release or transfer him to the custody of another country. During his first two years in office, President Obama pursued both of these options, but the Administration quickly realized that some “irreducible minimum” of detainees could neither be prosecuted by the United States (because prosecution would be too difficult) nor transferred to another country (because release would be too dangerous).
The detainees in the “too dangerous to transfer but not feasible for prosecution” category—the “forever prisoners”—had to remain detained somewhere. And therein lay the quagmire. To close Guantanamo, the Administration needed to identify a facility inside the United States that could hold the remaining detainees. But Congress foreclosed that option by prohibiting the use of any funds to support such a relocation, citing concerns over “bring[ing] terrorists into [our] backyard” and worrying that “bring[ing] these enemy combatants to domestic soil is . . . gambling national security.” So while President Obama made significant progress in reducing the Guantanamo population over his eight-year tenure, on the day he left office, forty-one detainees remained. Of these detainees, ten have been charged or tried before a military commission, while the rest remain in indefinite law-of-war detention without charge.
Although nothing in politics is certain, it is safe to expect a very different kind of Guantanamo policy over the next four years. As a candidate, Donald Trump vowed to keep the detention facility open, and to “load it up with some bad dudes.” A draft executive order circulating in early February 2017 would have turned this campaign rhetoric into Administration policy by officially rescinding President Obama’s closure order and directing the Department of Defense to begin populating Guantanamo with detained ISIS fighters, although no such order has been issued as of this writing. A variety of indicators—including a statement by Attorney General Jeff Sessions declaring that he sees “no legal problem whatsoever” with adding to the prison’s population, a budget request for upgrades to the facility, and a tweet from President Trump criticizing past prisoner releases—appear to confirm that, although the finer contours of President Trump’s Guantanamo policy remain unclear, it almost certainly will not include closing the facility.
But that does not mean the end of the Guantanamo debate. Setting aside important discussions over the moral and political cost of Guantanamo, serious doubts remain about even its purported benefits. In many ways, Guantanamo has failed to deliver on the “promise” of providing a legal gray zone. The Supreme Court has ruled that the privilege of habeas corpus extends to Guantanamo detainees, who can now challenge their law-of-war detention in U.S. courts. And for those detainees whom the United States chooses to refer for prosecution before military commissions, the Court has required Congress to offer serious procedural protections. If the purpose of the military commissions was to provide a quicker route to conviction than Article III civilian courts could offer, they have failed: fifteen years after Guantanamo received its first detainees, the military commissions have produced only eight convictions, six of which were subsequently overturned in part or in full. Add to this Guantanamo’s exorbitant cost—$445 million per year and $10.85 million per detainee in 2015—and it becomes clear that the facility’s continued long-term operation is far from certain. And as long as the detention facility stays open, it will remain the topic of fierce debate both inside and outside of government during the Trump Administration, during the 2018 and 2020 elections, and during administrations to come.
But the debate over closing Guantanamo lacks a crucial piece of information. Much discussion has focused on the legal consequences for detention of relocating current Guantanamo detainees to an alternative facility inside the United States—i.e., if and how relocation would affect detainees’ rights in habeas proceedings or criminal prosecutions. Far less attention, however, has been given to the legal consequences of relocation once detention ends. Inevitably, some number of Guantanamo detainees will exit U.S. custody in their lifetimes. For any given prisoner, the executive branch may determine that the individual is safe to transfer to another country, the detainee may complete a prison sentence imposed by a military commission or civilian court, or the U.S. government may lose the authority to detain the individual under domestic or international law. Under any of these scenarios, the United States would need to release the individual. But release him where?
Consider the following scenario: detainees currently held at Guantanamo are relocated to a prison inside the United States, where they continue to be detained as enemy combatants under the laws of war. Then, by judicial decree or administrative decision, a detainee that has been relocated to U.S. soil secures his release from law-of-war detention. (Perhaps a court finds that law-of-war detention is no longer lawful because hostilities have ended, or a detainee succeeds in obtaining a writ of habeas corpus by showing that he is not properly classified as an enemy combatant.) At this moment, the United States would have a foreign individual on its soil that, presumably, the government would like to remove from the country. The government begins immigration proceedings to remove the individual, but officials cannot repatriate the former detainee to his home country because conditions there entitle him to some sort of relief from removal (for example, if his home country would likely torture him). The United States attempts and fails to identify a third-party country willing to take the former detainee, so immigration officials hold the individual in immigration detention. After several months of waiting in immigration detention, the individual files a habeas petition asking the court to order his release from continued, indefinite detention. What happens then?
This scenario is not fanciful, worst-case thinking. In 2010, in a case called Kiyemba v. Obama, the U.S. Supreme Court was asked to decide the fate of several Guantanamo detainees who, as determined by the U.S. government, could no longer be held under the laws of war. But domestic and international law blocked the detainees’ repatriation to their home country of China because of the high likelihood that they would face torture upon their return, and the United States could not find a third country willing to accept the detainees as immigrants. So the prisoners remained detained at Guantanamo, despite the fact that they were no longer detainable under the laws of war. A late-breaking offer of resettlement saved the Supreme Court from having to decide if the United States was obligated to release the prisoners onto U.S. soil.
This Note seeks to inform the political debate over Guantanamo’s closure by answering the question the Supreme Court skirted: what are the immigration consequences of relocating Guantanamo detainees to U.S. soil?
This Note proceeds to answer this question in five parts. First, Part I asks if immigration laws would apply to relocated detainees. Disagreeing with the position taken by the Obama Administration, this Note argues that they would. Precedent from the treatment of law-of-war detainees during World War II (WWII) indicates that relocated detainees would be legally, if not physically, at the border with a legal status equivalent to an alien seeking admission into the United States at a port of entry.
While WWII precedents tell us about detainees’ immigration status, they do not clearly indicate what rights would attach to that status. To examine what protections immigration law would afford a former detainee, Part II details modern international and domestic law regarding the rights of aliens at the border. Such aliens enjoy limited protections against return to countries that would persecute or torture them, subject to some exceptions and limitations. This Note concludes that most avenues for relief from removal would be closed to a former law-of-war detainee, but the United States would remain absolutely barred from transferring an individual to a country likely to torture him.
Given the possibility that the United States could not lawfully remove an individual from U.S. soil, Part III discusses the government’s authority to hold an unremovable alien in immigration detention. The current statutory scheme provides the United States with considerable flexibility to keep a former detainee in immigration custody for significant periods of time, but it is possible that indefinite detention could raise constitutional concerns.
Having analyzed the immigration law that would apply to a U.S.-located detainee, this Note then seeks to enable a comparative assessment by discussing the immigration law that likely applies at Guantanamo Bay. Acknowledging the likelihood of significant policy changes under the Trump Administration, however, Part IV avoids strong predictions and instead draws only the modest conclusion that relocation would have a minimal impact on the legality of indefinite immigration detention. Finally, Part V concludes by discussing this Note’s implications for the political debate surrounding the status of Guantanamo and its detainees.