Biden Administration Punts on Due Course of Rights for Guantánamo Detainees


WASHINGTON – The Biden administration pulled back on Friday from a Trump-era claim that inmates at Guantánamo Bay War Prison in Cuba have no right to due process under the constitution. But it fell short of declaring that non-nationals detained at the American naval base in Cuba are covered by such legal protection, according to officials familiar with the matter.

Instead, in an anticipated brief before the entire District of Columbia Circuit Court of Appeals, the Justice Department failed to comment on whether Guantánamo detainees have a right to due process. The confused outcome followed a sharp internal debate within Biden’s legal team.

The brief was filed because it contained classified information about the prisoner at the center of the case, a 53-year-old Yemeni, Abdulsalam al-Hela, who has been held in the prison of war since 2004 without charge or trial. But while it was not immediately available to the public, officials described its views – or lack thereof – as part of a due process.

The question of whether the constitutional guarantee that the government cannot withhold life, liberty or property from people without due process also applies to non-American detainees held in Guantánamo has been raised since the George W. Bush administration became first time prisoners of war were taken there to indefinite detention without trial in 2002. It was never resolved.

While it is not always clear which process is “appropriate”, setting a precedent for the clause to cover such detainees would give them a better basis to ask a court to review as the government does on matters including their continued detention and medical treatment, and whether evidence from torture may be used against them.

It remains unclear what the District of Columbia Court of Appeals will say. During the Trump administration, the Justice Department had argued that Mr Hela had no due process rights, and a conservative appeals court used the case to explain that the due process clause did not apply to any detainee. But the entire court, controlled by more liberal judges, decided to overturn that ruling and re-try the matter.

The government’s position that Mr Hela is lawfully detained has not changed. The brief is intended to claim that he meets the criteria for detention as a prisoner of war, regardless of whether the clause caught him through due process. In addition, last month a six-agency parole board recommended his transfer if a country can be found that can relocate him with his wife in a safe arrangement.

Biden’s legal team reportedly argued for weeks over essentially three options: sticking to the Trump-era claim that inmates lack due process rights, withdrawing that claim but not taking a position, or affirmatively acknowledging that inmates who Appeal their detention, federal court has due process.

Individuals familiar with internal deliberations, some Justice Department officials – where government professional attorneys have spent years under bilateral administration defending Guantánamo detention policies in court – have refused to change the Trump-era position, because this might make it harder to win such cases.

However, other officials argue that it would conflict with the values ​​of the Biden government not to clearly state that detainees have due process. Attorneys from the Pentagon and State Department reportedly urged that the clause protect detainees under habeas corpus procedures – while also stating that the standard was being adhered to.

And intelligence lawyers are said to have taken the less energetic position that they would not contradict a brief, narrow testimony from prisoners in this regard, while disregarding other contexts such as military commissions and medical affairs.

Officials familiar with internal deliberations spoke on condition of anonymity, but this week began to filter out news of the disagreement. On Wednesday, Illinois Senator Richard J. Durbin, Chairman of the Judiciary Committee and Chairman of the No. 2 Democrats in the Chamber, sent a letter to Attorney General Merrick B. Garland asking him to instruct the department to say that Detainees such have rights.

However, Mr. Garland reportedly refused to participate in the litigation. Until recently, he was a judge on the District of Columbia Circuit Court of Appeals and participated in proceedings involving Guantánamo detainees. Elizabeth B. Prelogar, acting attorney general, oversaw the inter-agency deliberations.