Guantanamo detainees on US soil: a legal minefield

President Obama’s decision to transfer as many as 100 terror suspects from Guantánamo Bay, Cuba, to a maximum security prison in rural Illinois potentially sets the stage for a new round of high-stakes legal battles over what additional rights, if any, Al Qaeda suspects are entitled to.

Under their current terms of confinement at Guantánamo, detainees have a constitutional right to challenge the legality of their detention in federal court. But that’s it.

In contrast, from the moment the detainees set foot on US soil, their lawyers will have the ability to tap into the full array of constitutional and other legal protections enjoyed by every American citizen and resident.

How broad might those protections be?

“It is an unanswered question. We’ve never done this before,” says Scott Silliman, a professor at Duke University Law School and director of the Center for Law, Ethics, and National Security.

“They are probably going to end up with more rights than they have at Guantánamo Bay, but how much more, we don’t know,” he says.

They're not in Cuba anymore

Congress passed a series of laws aimed at stripping Guantánamo detainees of potential legal rights, including the right to challenge the conditions of their confinement at the prison camp and to claim fundamental protections of due process.

But the US Supreme Court has issued a series of decisions establishing rights at Guantánamo, including a 2008 decision finding a constitutional right to challenge the legality of their confinement via habeas corpus petitions in federal court.

Once detainees are moved to the US, the tangle of congressional restrictions on detainee rights at Guantánamo will fall away.

“The main argument the government has had as to why these men don’t have rights is that they are held outside the sovereign territory of the United States,” says David Remes, legal director of the Washington-based group Appeal for Justice and who represents 20 Guantánamo detainees.

“The Supreme Court rejected that,” he says. “But the government is still arguing that the detainees have no constitutional rights beyond habeas rights because they are offshore.”

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