Leaving Guantanamo: The Law of International Detainee Transfers

Abstract

Revelations about the C.I.A.'s extraordinary rendition program have generated heated debate regarding the legal issues that come into play when the United States transfers an individual to the custody of a foreign state in circumstances involving an appreciable risk that the person will be tortured. Relatively little attention has been paid, however, to the related issues that arise when the U.S. military transfers Guantanamo (GTMO) detainees to the custody of their own governments. Dozens of such transfers have occurred over the past several years, and the Pentagon has announced that hundreds more are in the offing as the United States whittles the GTMO population down to a core group of relatively high-value detainees. Meanwhile, against a backdrop of heightened public interest in torture issues, in the spring and summer of 2005 nearly 100 of the detainees moved for preliminary injunctive relief in anticipation of a potential transfer, citing risk-of-torture concerns. These motions prompted a little-noticed intra-circuit split among the judges of the federal district court in D.C., and in the process demonstrated that the constitutional, statutory, treaty, and administrative law concepts applicable to this issue are not yet well-understood.

My article aims to fill this gap, with particular attention paid to issues of judicial enforceability and the special circumstances associated with GTMO (taking into account Rasul v. Bush). In Part I, I orient the reader with a survey of the transfers and litigation that have occurred up to this point (including an online appendix providing detailed information relating to the detainees and their habeas petitions). Part II analyzes Article 3 of the Convention Against Torture, its implementing legislation, and a host of related issues ranging from diplomatic assurances to the Administrative Procedure Act. Parts III and IV consider the impact of the law of war on the transfer issue, with particular attention paid to conflict-status and detainee-status issues. In Part V, I draw on the state-created danger doctrine to explore the consequences for the transfer issue should the courts ultimately conclude that GTMO detainees have federal constitutional rights.

Keywords: Torture, GTMO, Guantanamo, rendition, transfer, diplomatic assurances, convention against torture, Geneva, law of war, lex specialist, substantive due process, state created danger