When and to Where? Leaving Guantanamo after Habeas, Release, or Transfer
33 Pages Posted: 28 Oct 2012
Date Written: May 1, 2012
Despite the fact that the U.S. has cycled detainees through its Guantánamo Bay facilities for over 10 years, the legal framework guiding repatriation of detainees remains in a stage of development. In this article, I focus on the difficulties faced by a subset of detainees: those approved for transfer or cleared for release by the executive, and those granted habeas by federal courts. Their main difficulties in repatriation from Guantánamo are twofold: first, detainees granted habeas do not know when they will leave Guantánamo, because federal courts cannot force release of detainees into the U.S. and do not order release abroad. Second, detainees with a fear of irreparable harm upon repatriation to their countries of origin do not know where they will be released or transferred, and cannot challenge the U.S. government’s determinations. After exploring the application of U.S. domestic habeas law, international humanitarian law, and international human rights law to the situation of these detainees, I argue that international human rights law is the framework most appropriate for addressing their grievances. I then propose two mechanisms guided by international human rights law: first, to allow detainees to bring claims of protection from refoulement, and second, to bring claims to compel agency action regarding release.
Keywords: Guantanamo, National Security, refoulement, human rights, international humanitarian law, geneva conventions, detainee
Suggested Citation: Suggested Citation