Closing Guantanamo Does Not Itself Grant Detainees Greater Due Process Rights

"On January 22, 2009, President Obama issued an executive order to close the prison at Guantanamo Bay within a year and on December 15 he announced his plan to transfer Guantanamo detainees to the Thompson Correctional Center in Illinois. The President is trying to make good on his campaign promise to close the Guantanamo prison - the controversial detention facility which has become a symbol of all that has gone wrong in the war on terror - and to separate the policies of his administration from those of former President George W. Bush. It appears, though, that this move provides no guaranteed benefit, either for the detainees or the American public.

The President's stated intent in closing Guantanamo is to "restore the standards of due process and the core constitutional values that have made this country great even in the midst of war, even in dealing with terrorism." But it is an empty gesture for two reasons. The first is that no one knows precisely what the legal consequences of the detainee's transfer will be, and the second is that even if they are granted expanded legal rights the President wants to hold prisoners in preventive detention for an indefinite period.

Presently, legal recourse available to detainees in Guantanamo is very limited. They have some due process rights that allow for hearings to determine their status as enemy combatants, they have the right to counsel, and they also have the right to file a writ of habeas corpus to challenge their detention as unlawful, a right the US Supreme Court confirmed through a series of cases [see Rasul v. Bush, Hamdi v. Rumsfeld, and Boumediene v. Bush].

The government has argued that while the detainees remain in Guantanamo they do not have constitutional rights beyond those mentioned above because they are being held outside the United States. Once the detainees enter the US, however, a legal Pandora's Box will be opened. Their ability to challenge their detention and test the boundaries of our legal system could be limitless because they will be able to access the rights and protections of the US Constitution that every American enjoys. But, it is not known at this point to what extent the courts will grant them those rights.

Even if the courts find that the prisoners are entitled to greater constitutional protections on US soil, President Obama has expressed that he would like to hold some prisoners in indefinite preventive detention. In the case of Hamdi v. Rumsfeld, the Supreme Court held that the President can exercise the executive authority to detain non-US citizens who are enemy combatants offshore for the duration of an ongoing military engagement, and at the cessation of hostilities the detainees must be released. There is currently no statute that allows for domestic preventive detention, but the administration is arguing that they can be held as terror suspects because they pose a danger to Americans if released either into the US or abroad.

While the President said that closing Guantanamo was a demonstration of the US taking the "moral high ground," the truth is that the transfer of the detainees to Illinois may only give the appearance that they will be tried at some point, but it is not a promise that a hearing will be forthcoming. In light of these facts, closing Guantanamo provides no assurance that the detainees will be afforded greater due process rights, either by the courts granting those rights or by the President allowing the prisoners to exercise them."