Appeals court grapples with constitutional protections for Guantánamo detainees

by Harper Neidig - 09/30/21 1:31 PM ET

A federal appeals court on Thursday grappled with what constitutional rights should be afforded to detainees held at Guantánamo Bay amid the Biden administration’s efforts to close the military prison.

The full D.C. Circuit Court of Appeals heard oral arguments in the case of a Yemeni man named Abdulsalam al-Hela who has been held at the site for nearly twenty years, and whose continued detention without charges, his attorneys argue, violates the Constitution’s due process protections.

Some of the judges on the circuit appeared concerned that the limited legal options available to detainees to challenge their detention fall short of what the Constitution requires.

Judge Patricia Millett questioned the Biden administration’s attorney about its position that detainees have robust opportunities to bring legal challenges when their defense attorneys are often prohibited from viewing classified information that could be considered important evidence.

“How can this process be remotely fair under your view” of the Constitution, Millett asked.

But at the same time, the panel of judges appeared cautious about issuing a sweeping constitutional ruling while the government is working to transfer a group of the remaining 39 detainees who have been cleared by a review board to be released to another country, including al-Hela.

Al-Hela was a Yemeni businessman and official who worked on a government program to expel extremists from the country. The government claims that he also helped arrange travel for al Qaeda members and affiliates in an effort to aid the terror group, which he has denied.

Sarah Harrington, a Justice Department attorney who argued on behalf of the administration, pointed out that officials are currently working to clear al-Hela for transfer to another country, a delicate process that involves multiple facets of the government and negotiations with foreign governments.

Harrington said that even if the court were to rule that al-Hela be released, it would still require the government to undergo that transfer process.

“I don’t think it would be appropriate for a court to try to impose itself into the negotiations that are going on,” Harrington said. “And so, it would just be sort of words on a paper and I don’t think it would have any effect.”

The D.C. Circuit is rehearing the case after a three-judge panel on the court ruled last year that Guantánamo detainees have no due process rights under the Constitution.

After President Biden took office this year, the Justice Department backed away from the Trump administration’s previous arguments that those rights do not apply to Guantánamo detainees, but urged the court not to issue a sweeping ruling on one of the constitutional questions that has dogged the nation since it began the indefinite detention of terror suspects in the wake of the 9/11 attacks.

Earlier this year, Sen. Dick Durbin (D-Ill.), the chairman of the Senate Judiciary Committee, called on Attorney General Merrick Garland to rethink the government’s past legal positions on the detainees.

“Legal positions or arguments that may have once seemed justified to some in the aftermath of 9/11 must be viewed in light of current circumstances,” Durbin wrote in a letter.

“As we approach the 20th anniversary of those attacks and the withdrawal of U.S. forces in Afghanistan, the Department should revisit its positions and arguments regarding the continued authority to detain men without charge or trial — and without due process — at Guantanamo,” he added.

Tags Abdulsalam al-Hela D.C. Circuit Court of Appeals Dick Durbin Guantánamo Bay Joe Biden Merrick Garland