The recent government report, U.S. jails could handle Guantánamo detainees, on the potential transfer of detainees to U.S. prisons focuses on practical concerns: the formulation of housing policies; the safety of guards, detainees, and the public; and availability of adequate space. These are important, as they satisfy necessary conditions for transfer, but they do not end the discussion.
Any transfer analysis is incomplete without a crucial consideration: a non-citizen present in the U.S. enjoys rights that aren’t available outside the United States. Accordingly, to bring detainees from prisons in Guantánamo to prisons in the U.S. is to change their rights status.
In its 2008 opinion Boumediene v. Bush, the U.S. Supreme Court held that the United States maintains de facto sovereignty over Guantánamo and, thus, that enemy combatant detainees have the constitutional right of habeas corpus. It remains unclear whether additional constitutional rights apply in de facto sovereign territory, and future cases will decide the issue. For now, it’s clear that within the U.S. constitutional protections are robust for citizens and noncitizens alike.
Christina M. Frohock, Miami Beach