New Case Tests Detention at Trump's Guantanamo

Steven D. Schwinn, John Marshall Law School

The Center for Constitutional Rights filed a habeas corpus petition in federal court last week on behalf of eleven detainees challenging their continued, and, under President Trump, apparently indefinite, detention at Guantanamo Bay.

The petitioners have all been detained at Guantanamo without charge or trial, between ten and sixteen years. Two have been cleared for release.

The petitioners argue that their claim is different than prior Guantanamo habeas petitions--"as it has to be," given President Trump's position on Guantanamo:

The two prior presidential administrations released a total of nearly 750 men. They did so by making case-by-case determinations based on an individual detainee's circumstances in a manner that was purportedly tailored to the executive branch's interest in national security. President Trump, in contrast to his predecessors, has declared and is carrying out his intention to keep all remaining detainees in Guantanamo, regardless of their individual circumstances--presumably even those the executive branch previously determined need no longer be detained.

The petitioners argue that their detention violates due process and exceeds authority under the 2001 Authorization for Use of Military Force.

As to due process, they argue that the Due Process Clause applies at Guantanamo for the same functional reason why the Suspension Clause applies there under Boumediene: "The Boumediene Court's functional analysis led to recognition of the applicability of the Suspension Clause in Guantanamo. Therefore, at least some measure of the Due Process Clause must also reach Guantanamo because there are no practical barriers that would apply to one provision but not the other." On the merits, they argue that their lengthy detention, without charge or trial, violates the Due Process Clause's durational limits on detention; that indefinite detention cannot be justified based on a loose and dated standard; and that two of them have already been cleared for release.

As to the AUMF, petitioners claim that it doesn't authorize indefinite, unreviewable detention; that the laws of war don't authorize this kind of detention; and that the AUMF itself has become stale.