Further Reflections on Guantanamo Detainees and Immigration Law

By Dan Cadman on March 21, 2016

A few days ago, the Center published my latest Backgrounder, "The Immigration Implications of Moving Guantanamo Detainees to the United States".

A few readers with deep subject matter knowledge may be wondering why I omitted two items from the discussion in that piece:

  1. Section 236A of the Immigration and Nationality Act (INA), and

  2. A May 14, 2014, Department of Justice (DOJ) letter written to the chairmen and ranking minority members of the Senate Armed Services and Judiciary committees, outlining its position as to why transferring the detainees would incur no risk.

Here are my views:

Section 236A of the INA. Section 236A (8 U.S.C. § 1226a) was embedded in the INA via Section 412 of the USA PATRIOT Act. It provides a mechanism whereby an alien certified by the Department of Homeland Security (DHS) secretary as being inadmissible or deportable under terrorism or national security grounds shall be held, theoretically indefinitely, although there must be reviews in six-month increments, each increment requiring recertification for the detention to continue. Here is the rub: Paragraph (a)(5) of the section says this:

The Attorney General shall place an alien detained under paragraph (1) in removal proceedings, or shall charge the alien with a criminal offense, not later than 7 days after the commencement of such detention. If the requirement of the preceding sentence is not satisfied, the Attorney General shall release the alien. [Emphasis added. Note: The powers of the Attorney General were transferred to the DHS Secretary by the Homeland Security Act of 2002.]

There is virtually no chance that an alien detainee transferred from Guantanamo to the United States will be charged with either a criminal or civil removal violation within a week after arrival. None. It would defeat the entire purpose of the transfer, and the intent behind treating these aliens as "enemy combatants", as explained in my Backgrounder. For this reason, I discount any useful application of this provision of law.

The DOJ Letter. The linchpin of DOJ's legal opinion is that Congress passed and the president signed into law an authorization for the use of military force, which asserts that aliens may be moved into and out of the United States under its provisions without any rights:

Historically, the courts have treated detainees held under the laws of war who are brought to the United States as outside the reach of the immigration laws. In addition to the relevant case law, Congress separately has the authority to expressly provide by statute that the immigration laws generally, or the particular forms of relief identified in section 1039(b)(1 )(A)-(C), are inapplicable to any Guantanamo detainees held in the United States pursuant to the authorization for use of military force (AUMF) as informed by the laws of war. The AUMF provides authority to detain these individuals within the United States and transfer them out of the United States. Assuming that detainees are held in the United States by the Department of Defense pursuant to the AUMF, and that the immigration laws do not apply to their detention or subsequent transfer abroad, Guantanamo detainees relocated to the United States would not have a right to obtain the relief described in section 1039(b)(1)(A)-(C).

First, let me say I find it laughable that the legal arm of the Obama administration — which has routinely used, misused, abused, and ignored the immigration law as it chooses — asserts in this letter that aliens' rights are precisely what Congress says they are, and nothing more.

Second, I would note that for several years both before and after the letter, Congress has serially passed defense authorization bills precluding expenditure of funds to transfer the detainees to the United States, or to build or refit facilities to house them. These bills were passed with substantial support from Republican and Democratic legislators alike, in both houses. Clearly DOJ's persuasive powers have not been up to the task of assuaging congressional concerns.

Third, it's worth observing that this is the same DOJ that only six months later did back flips to arrive at a legal justification for the president to undertake his expansive executive actions on immigration — actions that belied their May 2014 assertion that, where immigration and aliens are concerned, the law is only and ever what Congress says it is. To many observers, the "executive actions" opinion of DOJ was not simply flawed, but crafted with a grim determination to arrive at the conclusion the department's political masters desired. And it is that opinion, and the actions it gave the go-ahead to, that has landed the administration squarely in the middle of legal proceedings now before the Supreme Court.

A few additional comments:

As I noted in my Backgrounder, treating these individuals as "enemy combatants" as defined by the rules of war is open to question. More importantly, though, the May 2014 DOJ report chose to elide over the signally important issue that even under the rules of war and the AUMF, detention would be indefinite and of substantial duration (it already has been, for most of them). Thus, even acts of Congress inevitably bend to constitutional interpretations, and the specter of petitions for writs of habeas wending their way through the lower courts to the Supreme Court, once these detainees have touched sovereign American soil, looms large. DOJ cannot vouchsafe that this is not a plausible, perhaps even probable, scenario.

Finally, the DOJ letter suggests that simply because the AUMF declares that these enemy aliens may be brought into, and taken out of, the United States without incurring any rights under immigration law, other factors need not be considered. It appears to me that the DOJ report gives short shrift to U.S. international treaty obligations where relief is concerned. We as a nation have chosen to bind ourselves to certain international conventions on the treatment of asylees and refugees; on withholding of removal of even dangerous aliens when they may be subject to persecution; and on not placing any aliens, including dangerous aliens, into the hands of torturers.

Can DOJ assert positively that these international conventions cease to apply simply because of AUMF enactment? They cannot. This is why there is over-reliance in the letter on use of phrases such as "assuming that" and "even in a scenario where".

There are probative reasons to question the integrity of DOJ's legal analyses, and to suspect that they may be subject to substantial political pressure from the administration in arriving at desired outcomes in their opinion-crafting processes, outcomes that gloss over the harsh realities of our litigious system of government, particularly where immigration matters are concerned — a litigiousness that, ironically, this administration has helped set into motion.

Where alien terrorist detainees are concerned, protracted legal proceedings are a nightmare scenario Americans never want to see, because even the general public understands that making policy decisions based on presumed outcomes of the Supreme Court (whether leaning liberal or conservative) is a crap shoot. No one desires the government to roll the dice about our safety and well-being in such an ill-considered manner.