Biden Legal Team Divided on Scope of Rights of Guantánamo Detainees

WASHINGTON – The Biden administration legal team is divided over whether the government should say that prisoners at the American naval base at Guantánamo Bay, Cuba, are due to due process under the constitution, according to those familiar with internal deliberations.

The Justice Department will file a brief by Friday evening to comment on this issue in a case involving Yemeni Abdulsalam al-Hela, 53, who has been in the prison of war without charge or trial since 2004. During the Trump administration the department had argued before an appeals court that he had no rights to due process.

The case is now in the full District of Columbia Circuit Appeals Court. Legal scholars and attorneys from other prisoners – including those who have been charged before a military commission – have been closely monitoring the case because it raised a legal and human rights issue that long-standing Guantánamo litigation has not yet answered.

Attorneys in national security roles across the executive are said to have argued for weeks over what the mandate should say. Some Justice Department officials – including professional government attorneys who have spent years under the administration of both parties to defend Guantánamo’s detention policies in court – are cautious about taking positions that could make such cases more difficult to win.

However, other officials argue that failing to clearly state that detainees have due process would conflict with the values ​​of the Biden government. The question first emerged when the George W. Bush administration began moving prisoners of war to the naval base in 2002, claiming that courts had no jurisdiction and that the Geneva Conventions did not apply there, leading critics to view this as a legal black hole describe.

The due process clause in the constitution states that “no one can be deprived of life, liberty, or property without due process”. It is not always clear which process is “due”. But if the clause protected detainees, they would have a better basis to ask courts to intervene over government treatment on a number of matters – including their continued detention, medical treatment, and the evidence that could be used in commission proceedings .

Officials familiar with internal deliberations spoke on condition of anonymity, but some of the disagreements spilled out of the executive branch this week. A senior Senate Democrat – Illinois Senator Richard J. Durbin, chairman of the judiciary committee and vice chairman of his party in the Chamber – sent a letter to Attorney General Merrick B. Garland asking him to instruct the department to take the prisoners to say have such rights.

“The time has come for the ministry to extend its approach on the applicability of the basic guarantees of due process to the men detained in Guantánamo without charge or trial, as well as other positions that help perpetuate this moral taint of our nation. rethinking. “, wrote Mr. Durbin.

At the moment, however, Elizabeth B. Prelogar, the Acting Attorney General who will sign the order, is primarily concerned with the issue. Mr. Garland reportedly refused to play any role in the litigation; he was until recently a judge on the District of Columbia Circuit Court of Appeals and participated in proceedings involving Guantánamo detainees.

In an August panel ruling of three judges, two Conservative appeals court judges used Mr Hela’s case to explain that the due process clause of the constitution does not apply to non-Americans detained there, the Trump administration argues would have. (A third judge on the panel, also a Republican appointee, declined to make the blanket due process rights claim, saying it was unnecessary to conclude that Mr Hela’s arrest was lawful. )

Then, in April, the entire District of Columbia Circuit Court of Appeals – which is controlled by more liberal judges – overturned the panel’s decision and decided to retry its case. It gave the Justice Department from Biden until Friday to file a statement on its position.

Biden’s legal department is wrestling with three main options in the Hela case. It could stick to the Trump-era position that Guantánamo detainees like Mr Hela have no right to due process.

Abdulsalam al-Hela, a citizen of Yemen, can be seen in a photo taken by the US military. He was captured in Cairo in 2002 and sent to Guantánamo Bay in 2004.Recognition…NO CREDIT

Second, it could withdraw that position but not take a clear position on the issue. Or it could say in the affirmative that the due process clause covers detainees – and ask the entire appeals court to say so in its judgment.

The outcome of the debate does not seem to help Mr Hela. Biden government officials largely agree that it is lawful for the government to detain him one way or another. In addition, the government has already decided that it does not want to detain Mr Hela permanently: Last month, a committee consisting of six agencies that works on probation recommended that he be transferred if a country can be found that would bring him with his wife to A safe environment can relocate arrangement.

The dilemma over what to say in the briefing is one of several national security policy issues related to the Guantánamo litigation facing the Biden legal team – which is still only partially staffed by Senate-approved political representatives.

Last week, for example, Ms. Prelogar decided to file a Supreme Court pleading advancing a Trump-era position in another case involving a prominent Guantanamo detainee better known as Abu Zubaydah. It argued that the court should overturn a Ninth District Professional Court ruling on revelations of his torture in a CIA prison because the courts should bow to the view of President Donald J. Trump’s former CIA director Mike Pompeo, that the matter is risky to divulge state secrets.

The decision on the due process clause could also have implications for other matters.

This week, government attorneys obtained a two-week delay from a court of appeal in order to challenge a judge’s decision in the Military Commission case regarding the bombing of the naval destroyer Cole in 2000. This decision allowed prosecutors to use in a pre-trial trial something the defendant said while being tortured by the CIA, which his lawyers said was against due process.

And in general, defense attorneys in this and other commission proceedings, including the capital proceedings against five men who committed the conspiracy in the 11th attacks, have alleged that the clause does not apply to the trial.

“Since the defendants are foreign hostile warring factions with no property or presence in the United States, the due process clause does not extend to them,” the prosecutors wrote in the September 11, 2020 case.