Doe v. Holder; new statutory rules governing GTMO transfer/release

1. Doe v. Holder (S.D.N.Y. Oct. 20, 2009)

This long-running litigation involves an Internet Service Provider whom the FBI served with a national security letter (i.e., a type of administrative subpoena) many years ago. The legal framework governing NSLs includes an option for forbidding the recipient of an NSL from disclosing the fact that it has received such a request.  At the time this particular NSL first was issued, it was not clear that the relevant statutes permitted the recipient to challenge the nondisclosure requirement in court (or even discuss the situation with a lawyer).  As a result of multiple rounds of litigation and statutory revisions, however, it is now clear that the government must initiate judicial review of an NSL nondisclosure provision and that the government has the burden of showing (by more than a conclusory assertion) that there is good reason to believe that the gag provision is necessary to avoid a substantial risk of harm in relation to the underlying investigation.

Yesterday, the district court (Judge Marrero) applied this new standard, and ruled in the government’s favor. The opinion is posted here.

2. New GTMO Transfer Restraints Imposed by the DHS Appropriations Legislation (HR 2892)

The Conference Report on the DHS Appropriations bill (clickhere for full text) has now passed the House and Senate, and I’m not aware of any veto threats.  So in short order, these will be the new rules on GTMO transfers and releases.  The key section is Sec. 552, which is copied below (note that I bolded key text, and have includedcommentary in italics).  In brief, it:

– precludes outright release into the US

– permits transfer into the US if the person is being prosecuted or “during legal proceedings” (the latter language is a bit confusing, to say the least, and I’d be glad to hear from anyone who can shed light on it), so long as the President first gives Congress a report on the risks, costs, and rationale for the transfer (and then waits 45 days)

– permits transfers/releases to other countries only if the President first gives Congress the details regarding the receiving state, the risk involved, the mitigation measures, and the terms of any agreement made with the receiving state (including financial assistance, if any)

Here is the actual language, along with my commentary in italics:

SEC. 552.

(a) None of the funds made available in this or any other Act may be used to release an individual who is detained, as of June 24, 2009, at Naval Station, Guantanamo Bay, Cuba, into the continental United States, Alaska, Hawaii, or the District of Columbia, into any of the United States territories of Guam, American Samoa (AS), the United States Virgin Islands (USVI), the Commonwealth of Puerto Rico and the Commonwealth of the Northern Mariana Islands (CNMI).

[This section uses the power of the purse to preclude the outright release of a GTMO detainee into the US or related territories.  Certainly of interest in light of the cert grant yesterday in Kiyemba v. Obama.]

(b) None of the funds made available in this or any other Act may be used to transfer an individual who is detained, as of June 24, 2009, at Naval Station, Guantanamo Bay, Cuba, into the continental United States, Alaska, Hawaii, or the District of Columbia, into any of the United States territories of Guam, American Samoa (AS), the United States Virgin Islands (USVI), the Commonwealth of Puerto Rico and the Commonwealth of the Northern Mariana Islands (CNMI), for the purpose of detention, except as provided in subsection (c).

[This section opens the door to the possibility of a controlled transfer of a GTMO detainee into US or related territories, under the terms set forth in the next section]

(c) None of the funds made available in this or any other Act may be used to transfer an individual who is detained, as of June 24, 2009, at Naval Station, Guantanamo Bay, Cuba, into the continental United States, Alaska, Hawaii, or the District of Columbia, into any of the United States territories of Guam, American Samoa (AS), the United States Virgin Islands (USVI), the Commonwealth of Puerto Rico and the Commonwealth of the Northern Mariana Islands (CNMI), for the purposes of prosecuting such individual, or detaining such individual during legal proceedings, until 45 days after the plan described in subsection (d) is received.

[This section identifies two scenarios in which a GTMO detainee can be brought into the US or related territories after all, both subject to a 45-day waiting period after the executive branch submits the report required in next subsection.  First, a detainee may be transferred for purposes of prosecution.  Second, a detainee may be transferred for the purposes of “detaining such individual during legal proceedings”.  The latter language is interesting, since it would seem on its face to be broad enough to include continued military detention at least during the pendency of habeas proceedings. Or perhaps this was meant to refer to some form of custody pending prosecution.  Hard to say.  If anyone can shed light on the intent associated with this language, I’ll be happy to circulate an update.]

(d) The President shall submit to Congress, in classified form, a plan regarding the proposed disposition of any individual covered by subsection (c) who is detained as of June 24, 2009. Such plan shall include, at a minimum, each of the following for each such individual:

(1) A determination of the risk that the individual might instigate an act of terrorism within the continental United States, Alaska, Hawaii, the District of Columbia, or the United States territories if the individual were so transferred.

(2) A determination of the risk that the individual might advocate, coerce, or incite violent extremism, ideologically motivated criminal activity, or acts of terrorism, among inmate populations at incarceration facilities within the continental United States, Alaska, Hawaii, the District of Columbia, or the United States territories if the individual were transferred to such a facility.

(3) The costs associated with transferring the individual in question.

(4) The legal rationale and associated court demands for transfer.

(5) A plan for mitigation of any risks described in paragraphs (1), (2), and (7).

(6) A copy of a notification to the Governor of the State to which the individual will be transferred, to the Mayor of the District of Columbia if the individual will be transferred to the District of Columbia, or to any United States territories with a certification by the Attorney General of the United States in classified form at least 14 days prior to such transfer (together with supporting documentation and justification) that the individual poses little or no security risk to the United States.

(7) An assessment of any risk to the national security of the United States or its citizens, including members of the Armed Services of the United States, that is posed by such transfer and the actions taken to mitigate such risk.

(e) None of the funds made available in this or any other Act may be used to transfer or release an individual detained at Naval Station, Guantanamo Bay, Cuba, as of June 24, 2009, to the country of such individual’s nationality or last habitual residence or to any other country other than the United States or to a freely associated State, unless the President submits to the Congress, in classified form, at least 15 days prior to such transfer or release, the following information:

(1) The name of any individual to be transferred or released and the country or the freely associated State to which such individual is to be transferred or released.

(2) An assessment of any risk to the national security of the United States or its citizens, including members of the Armed Services of the United States, that is posed by such transfer or release and the actions taken to mitigate such risk.

(3) The terms of any agreement with the country or the freely associated State for the acceptance of such individual, including the amount of any financial assistance related to such agreement.

(f) None of the funds made available in this Act may be used to provide any immigration benefit (including a visa, admission into the United States or any of the United States territories, parole into the United States or any of the United States territories (other than parole for the purposes of prosecution and related detention), or classification as a refugee or applicant for asylum) to any individual who is detained, as of June 24, 2009, at Naval Station, Guantanamo Bay, Cuba.

(g) In this section, the term ‘‘freely associated States’’ means the Federated States of Micronesia (FSM), the Republic of the Marshall Islands (RMI), and the Republic of Palau.

(h) Prior to the termination of detention operations at Naval Station, Guantanamo Bay, Cuba, the President shall submit to the Congress a report in classified form describing the disposition or legal status of each individual detained at the facility as of the date of enactment of this Act.

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