Biden administration attacks due process rights for Guantánamo detainees

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WASHINGTON – The Biden administration withdrew on Friday from a Trump-era claim that inmates at Guantánamo Bay prison of war in Cuba have no constitutional right to due process. But he stopped before saying that non-nationals detained at the US naval base in Cuba are covered by such legal protections, according to officials familiar with the matter.

Instead, in a long-awaited brief to the entire District of Columbia Circuit Court of Appeals, the Justice Department took no position on whether the Guantanamo detainees have any due process rights. The muddled result followed a heated internal debate within Biden’s legal team.

The file was filed under seal as it contained classified information on the detainee at the center of the case, a 53-year-old Yemeni Abdulsalam al-Hela, held without charge or trial in the prison of war since 2004. But while ‘he was not immediately available to the public, officials have described his take – or lack of – on due process.

The question of whether the Constitutional guarantee that the government cannot deprive people of “life, liberty or property without due legal process” applies to non-American detainees held at Guantanamo has been raised since George W. Bush’s administration brought in prisoners of war for the first time. there for indefinite detention without trial in 2002. This has never been resolved.

While it is not always clear which process is ‘due’, a precedent establishing that the clause covers such detainees would give them a better basis to ask a court to review how the government treats them on issues such as their continued detention, their medical treatment. and whether evidence from torture can be used against them.

It’s still unclear what the Full District of Columbia Court of Appeals will say. During the Trump administration, the Justice Department argued that Mr. Hela had no due process rights, and a conservative appeals court used the case to declare that the due process did not apply to any detainee. But the full court, which is controlled by more liberal judges, has decided to overturn that decision and hear the case again.

The government’s position that Mr. Hela is legally detained has not changed. The brief would claim that he meets the criteria to be detained as a prisoner of war, whether or not the due process clause covers him. Additionally, last month a commission similar to six parole agencies recommended his transfer if a country can be found to resettle him, with his wife, in a secure arrangement.

Biden’s legal team reportedly discussed for weeks essentially three options: stick to the Trump-era claim that inmates have no due process, withdraw that claim but don’t take no position, or affirmatively recognize that inmates who challenge their detention in federal court have due process rights.

According to people familiar with the internal deliberations, some officials at the Department of Justice – where career government lawyers have spent years under the administrations of both sides defending Guantánamo’s detention policies in court – have resisted the move. changing the position of the Trump era as it could make it more difficult to obtain such cases.

But other officials argue that it would be against the values ​​of the Biden administration not to make it clear that detainees have due process rights. Pentagon and State Department attorneys have reportedly insisted that the clause protects detainees in habeas corpus proceedings – while also claiming that the standard was met.

And lawyers for intelligence agencies would have taken the less forceful stance that they would not object to a brief narrowly asserting that detainees have due process rights in this context, while leaving other contexts – such as military commissions and medical questions – unanswered.

Officials familiar with the internal deliberations spoke on condition of anonymity, but rumors of the disagreement began to filter this week. Senator Richard J. Durbin of Illinois, chairman of the Judiciary Committee and House No. 2 Democrat Leader on Wednesday – sent a letter to Attorney General Merrick B. Garland urging him to ask the department to say that inmates have such rights.

Mr. Garland, however, is said to have recused himself from playing a role in the litigation. He was until recently a judge at the District of Columbia Court of Appeals and participated in cases involving Guantanamo detainees. Elizabeth B. Prelogar, the Acting Solicitor General, oversaw the interagency deliberations.

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