Assessing Length: The Blind Spot in Habeas Review of Guantanamo Detentions

[This guest post is from Jonathan Hafetz, Associate Professor of Law at Seton Hall University School of Law. He has also represented several Guantanamo detainees.]

Yet, while important, the debate over the D.C. Circuit’s interpretation of Boumediene is also limited.  It centers on threshold determinations of detainability—who can be held in military custody under the 2001 Authorization for Use of Military Force (AUMF) and pursuant to what process—and assumes that those found detainable may be held for the duration of the conflict.  This front-end focus is loosely based on the paradigm of combatant (prisoner of war) detentions under IHL.  That paradigm’s superimposition on war-on-terrorism detentions was given qualified endorsement by the Supreme Court in Hamdi v. Rumsfeld, which upheld the president’s authority under the AUMF to detain an alleged Taliban fighter captured while participating in hostilities in Afghanistan.

Habeas litigation since Hamdi has focused largely on defining the permissible scope of the president’s AUMF-based detention power and the process required to determine whether a prisoner falls within the category of individuals who may be held.  The bulk of the litigation involves non-citizens detained at Guantanamo.  The Supreme Court’s extension of habeas rights to Guantanamo detainees—decried by Boumediene’s dissenters and several D.C. Circuit judges—reflects a concern about the risk of error in applying a combatant detention model to a conflict against non-state actors, where, for example, enemy fighters are more difficult to identify.  It also reflects a discomfort about the consequence of those errors: prolonged detention in a conflict whose length is not only unprecedented but which also lacks any objectively definable criteria to mark its conclusion (How, for example, does one determine the cessation of hostilities in a war against al Qaeda and associated forces?).  The desire to preserve some modicum of judicial review—whether grounded in habeas corpus (Rasul and Boumediene) or the Due Process Clause (Hamdi)—reflects a desire to contain the risk of mistaken detention—that is, of detaining individuals who should never have been held in the first place.

The focus on threshold detention criteria and procedures, however, excludes consideration of the appropriate length of detention.  It fails to acknowledge the possibility that some individuals who satisfy the relevant threshold standard for detention should nonetheless be released prior to the conflict’s termination.  The absence of attention to the duration of AUMF-based detention has become more pressing as the conflict with al Qaeda has stretched into its second decade.  At this point, the relevant question is not so much whether someone who may have stayed at a guesthouse frequented by al Qaeda members or trained briefly at an al Qaeda-affiliated camp can be detained, but rather whether that person should continue to be held more than ten years after the fact.

For most of the remaining 169 Guantanamo detainees, durational concerns are paramount.  Military commissions—the only forum where the length of confinement is addressed (via sentencing following conviction)—affect only a small minority of detainees.  The overwhelming majority are the non-charged and thus, by necessity, the non-sentenced.  The non-sentenced include more than half of the current Guantanamo detainees, whom the Obama administration has cleared for transfer.  It also includes detainees slated by the administration for continued law-of-war confinement—a number that continues to grow with the addition of detainees whom the government initially deemed eligible for prosecution but has failed to charge.  Non-sentenced detainees have no judicial forum where the length of their confinement can be considered.  Once found detainable, they may be held indefinitely.  Detainees cleared for transfer likewise lack any judicial forum where the end-point may be addressed since under D.C. Circuit’s decision in Kiyemba, judges have no authority to order their release.

The current front-end focus has inherent accuracy costs, no matter how much the procedures are refined since it provides no check against holding detainees for too long. It also fuels a perception of arbitrariness, particularly where the detentions exist alongside a system of military commission prosecutions.  Unless a detainee is among the handful accused of direct involvement in a terrorist attack, prosecution in a military commission may provide the quickest way out of Guantanamo.  Prosecution in a commission affords the possibility not only of a more trial-like process but also of a sentencing hearing, thus providing the government an incentive to negotiate a plea—an incentive absent from the habeas detainee-review context.  Additionally, detainees convicted of commission offenses are exempt from the onerous restrictions Congress has imposed on the president’s ability to transfer detainees to other countries.

The length of time that Guantanamo detainees are held is not only often disproportionate to their actions.  It is also in tension with the law-of-war principles that inform the detentions.  Civilian internment for security purposes under the Fourth Geneva Convention (GC IV)—in many ways a more appropriate model for AUMF-based detentions than the traditional combatant detentions—requires a more rigorous showing for continued confinement   While the end of hostilities provides an outer limit, detentions under GC IV may continue during the conflict only if “absolutely necessary” to the security of the detaining power.   Thus framed, the D.C. Circuit’s narrow reading of Boumediene is only part of the problem.  Even if the habeas process were more demanding, prisoners could still be held indefinitely as long as a habeas judge found that they met the threshold criteria for detention, regardless of whether their continued confinement was necessary.

The government has sought to address the durational problems inherent in war-on-terrorism detentions, initially through the Bush administration’s Administrative Review Board (ARB) and now through the Obama administration’s Periodic Review Board (PRB).  The ARB, however, had little, if any, impact on release decisions, which were driven more by political factors than an independent assessment of the necessity of continued confinement.  It is too soon to tell what, if any, effect the PRB will have.  But like the ARB, the PRB is an internal executive-branch process and does not provide for judicial review.  The PRB, moreover, contains a considerably laxer standard for continued detention—“significant security threat”—than GC IV.  Moreover, it applies only to those slated for indefinite law-of-war detention, thus providing no benefit to those detainees who have been cleared for transfer.

To be sure, more robust procedures and evidentiary rules would mitigate the limitations of habeas review’s current front-end focus.  But as the recent certiorari denial suggests, the contours of the habeas process are not likely to change soon.  Nor is it likely that the substantive detention standard will be drawn more narrowly, particularly given Congress’ codification in the 2012 National Defense Authorization Act (NDAA) of a “part of” or “substantially supported” test for detention.  This legislation precludes the kind of judicial narrowing that still remained possible under the pre-NDAA AUMF, which was silent on detention.  Further, even if a more demanding threshold process were created, that process would be meaningful only in assessing whether a person could be detained.  It would not permit calibration of the length of time a person should be held based on his prior conduct or the future threat he poses.

In short, meaningful review requires more than greater front-end process.  Judges must also have the power both to assess the need for continued detention under a standard that imposes a heightened burden on the government and to order a prisoner’s release where appropriate.  The former would likely require statutory amendment while the later could be achieved by judicial decision (though it would require the Supreme Court to overturn Kiyemba and invalidate the current congressional ban on releasing detainees within the United States).

Perhaps in a future case, the Supreme Court will intervene aand require more stringent review than the D.C. Circuit has to date.  Or perhaps the en banc D.C. Circuit will revisit prior panel rulings, such as the presumption of accuracy established in Latif, as issues are presented in new cases.

But the Court’s recent certiorari denial serves as a reminder that meaningful review requires developing more robust procedures to address not simply who may be held, but for how long.