Suspending the writ at Guantanamo: take III?

• Author: Pace, Joseph

While the popular media and legal community have fixated on trying and releasing Guantanamo detainees in the United States, (1) a constitutionally suspect law governing transfer to third countries has gone largely unnoted. In June 2009, Congress buried in a supplemental appropriations bill (2) what, at first glance, appears to be an innocuous notification requirement. Under the provision, the President may not use appropriated funds to release or transfer a detainee from Guantanamo to a foreign country until fifteen days after he submits a classified report to Congress detailing the risks of transferring the detainee, the plans for mitigating those risks, and the terms governing the third country's agreement to accept him. (3)

As currently applied, however, the provision raises serious questions under the Suspension Clause (4) and the separation of powers principles that the Clause protects. There are two processes by which a detainee may be transferred from Guantanamo. The vast majority of transfers are the product of discretionary executive action following administrative review. (5) A much smaller portion of detainees--to date, nineteen--are transferred pursuant to a court order granting the detainee's petition for a writ of habeas corpus. (6) Although the executive has complied with the notification law in both types of transfer, (7) the law is likely an invalid suspension of the writ as applied to successful habeas petitioners and a violation of the separation of powers.

In Boumediene v. Bush, the Supreme Court held that noncitizens detained at Guantanamo as enemy combatants "are entitled to the privilege of habeas corpus to challenge the legality of their detention." (8) Habeas, at its core, expresses a simple proposition: where there is no legal basis to hold a prisoner, he must be released as soon as possible. (9) The notification provision defies this command, and it does so in a manner doubly suspect under the separation of powers. By freezing appropriated funds, the provision purposefully disables the executive from enforcing a court-ordered habeas remedy, requiring the President to retain custody of a detainee possibly for more than a month after his legal authority to do so has expired. (10) In effect, the notification law creates a mandatory minimum of fifteen days' extrajudicial detention that is unreviewable by courts and unalterable by the executive. For that duration, the detainee ceases to be a victim of arbitrary executive detention and effectively becomes a congressional prisoner.

Part I of this Comment details how the notification provision contravenes the Suspension Clause and the separation of powers and why the issue pending before the Court in Kiyemba v. Obama (11) is inapposite to the notification law's constitutional infirmities. Part II explains why, if successful habeas petitioners launched as-applied challenges to the provision, courts would likely invoke the canon of constitutional avoidance and the clear-statement rule to adopt a construction of the law that applies only to discretionary, non-habeas releases.

1. CONSTITUTIONAL OBJECTIONS TO THE NOTIFICATION LAW

   After six years of litigation, the Supreme Court declared in Boumediene that the Suspension Clause had "full effect at Guantanamo Bay." (12) Responding to the Court's conclusion in Rasul v. Bush (13) that the habeas statute, 28 U.S.C. 2241, was operative at Guantanamo, Congress had twice amended that statute to strip courts of their jurisdiction over detainees' habeas claims. (14) In invalidating those amendments, the Boumediene Court emphasized the centrality of habeas as an instrument in policing the separation of powers and guarding against abuses by the political branches. (15) Because habeas serves a structural function, the Court admonished, "[t]he test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain." (16) Boumediene also reiterated two elemental principles of habeas jurisprudence. First, no one may be held absent a legitimate basis in law. Each detainee must be afforded an opportunity to challenge the lawfulness of his detention. When challenges are successful, the courts must possess the authority to issue "an order directing the [detainee's] release." (17) Second, meaningful habeas review requires haste. The Court has repeatedly characterized habeas as a speedy remedy, emphasizing that its purpose is to ensure that if one "is unlawfully restrained of his liberty it may be given to him as speedily as possible." (18) The Boumediene majority underscored this point, remarking that "six years have elapsed without the judicial oversight required by habeas corpus.... [T]he costs of delay can no longer be borne by those who are held in custody." (19)

   The Court's judgment in Boumediene raises serious doubts about the constitutionality of the notification law as applied to successful habeas petitioners. Most suspension claims have involved statutes that divest courts of their authority to hear the petition. (20) In this case, however, the courts retain authority to entertain the petition, and upon deciding there are no legal grounds for continued detention, they can order immediate relief. Here, the offense against the Suspension Clause--and the separation of powers--is that the law immobilizes the President from executing that relief. (21) The additional weeks of confinement that the notification law compels are weeks of effectively unreviewable detention without basis in law. The law, in short, appears to effect a minimum fifteen-day suspension of the writ.

   One might counter that the notification law itself is the legal basis authorizing the additional period of detention. (22) That argument might have traction if the law furthered some important interest that was incidental to transfer. For example, a law decreeing that the President may not transfer a long-term hunger striker until base physicians are satisfied, after fifteen days of monitoring, that he is fit to fly may be constitutionally unobjectionable, delay notwithstanding. Similarly, a law requiring the executive to wring diplomatic assurances of humane treatment before transferring a detainee to a country with a record of human rights abuses may be consistent with the Suspension Clause. In the case of the notification law, however, there is no equivalent interest. The legislative history is silent as to Congress's motive in enacting the provision, but it is not difficult to reconstruct one. If the motive were ensuring the flow of timely information on the Administration's handling of Guantanamo's closure, Congress could have required notification concomitant with transfer. The more likely explanation for the funding freeze is that members of Congress wanted a fifteen-day window in which to review transfers and exert political pressure to halt those they deemed objectionable. A court might credit that motive...