The Obama administration says there are legal safeguards in place in the event suspected terrorists being held at Guantánamo Bay are ever relocated to the United States, and that detainees would not be permitted to seek asylum and would have no right to remain in the country permanently.
In a report to Congress, the Justice Department said such a transfer could occur without jeopardizing national security and that detainees held on suspicion of terrorism would not enjoy the same legal rights as other immigrants, including the ability to get asylum. Such detainees, the report notes, have historically been treated “as outside the reach of the immigration laws.”
The report said the administration knew of no court precedent, statute or constitutional provision that would grant a Guantánamo detainee the right to remain permanently in the United States. It added that Congress would also be free to pass a law specifically barring such a thing from happening.
The report came in response to a provision in the annual defense policy bill seeking the Justice Department’s interpretation of legal rights and asylum if terror suspects held at the U.S. Navy base at Guantánamo Bay, Cuba, were to be transferred to the U.S.
As of this week, the Pentagon held 154 captives at the remote prison, staffed by about 2,200 federal employees, most of them soldiers.
The question remains mostly theoretical. President Barack Obama has pushed to close the detention facility, calling it expensive and inefficient, but Congress has repeatedly barred the administration from moving terror suspects to the U.S., even to maximum-security prisons.
The new analysis, provided in consultation with the Defense Department, appeared designed to assuage concerns that detainees would acquire new legal protections if the prison were shut down. But some Republicans said they remain unconvinced.
Sen. James Inhofe, R-Okla., the top Republican on the Senate Armed Services Committee and a strong proponent of keeping the prison open, said the report’s conclusion was predictable, "simply giving cover to President Obama so that he can continue what he is already actively working towards, which is bringing terrorists onto U.S. soil."
Rep. Howard "Buck" McKeon, R-Calif., chairman of the House Armed Services Committee, said he remains concerned that terrorists would come to reside in the United States and that Attorney General Eric Holder was holding out "unrealistic hope for favorable outcomes in court on a host of complex and novel immigration issues."
Obama came to office in January 2009 promising to close Guantánamo, but Congress has repeatedly blocked any such step, maintaining that the facility is the only viable option to house terror suspects. The administration has also pushed for the ability to transfer detainees to the U.S. for imprisonment, trial or medical emergencies but has been unsuccessful on that front to date.
Obama received a rare victory in his effort to close the prison last December when lawmakers eased the most rigid restrictions on detainee transfers overseas.
The Senate Judiciary Committee chairman, Sen. Patrick Leahy, D-Vt., said the report lends support for lifting the congressional ban on transferring detainees to the United States and should calm fears that it would harm public safety. "The executive branch must have all options available to it as it seeks to close the detention facility at Guantánamo," Leahy said.
The report also noted that while relocated detainees would maintain the right to challenge their detention, “the government’s national security and foreign policy interests and judgments should be accorded great weight and deference by the courts.”
Though a 2001 Supreme Court ruling said immigrant criminals with no country to accept them cannot be jailed indefinitely, the decision did not preclude longer periods of detention in cases where the detainee is believed to pose a national security threat, the Justice Department noted.
The report underscored that the convention against torture bars the United States from returning an individual to a country where he "more likely than not" will be tortured. The U.S. already applies this standard to all transfers from Guantánamo, the report said.