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Pace on Habeas & Guantanamo

By Lawrence Solum

Joseph Pace has posted Suspending the Writ at Guantanamo: Take III? (Yale Law Journal, Vol. 119, 2010) on SSRN. Here is the abstract:

Under recently enacted appropriations laws, whenever the President wishes to transfer a detainee from Guantanamo Bay to a third country, he must submit a classified report to Congress, which starts a 15 day clock. Only at the end of those 15 days may the Executive conduct the transfer. While the notification law might be unobjectionable as applied to discretionary releases, it raises serious questions under the Suspension Clause and separation of powers when applied to successful habeas petitioners. It effectively adds 15 days of mandatory and unreviewable detention beyond a judicial determination that the Executive lacks legal authority to hold a detainee. Furthermore, since the classified report must contain the final terms of the resettlement/repatriation agreement, the 15 day delay does not start until the Executive has already arranged the transfer. While the short duration of the delay makes the provision difficult to challenge, if a court were to hear such a challenge, it would almost certainly invoke the canons of constitutional avoidance and the clear statement rule to void the law as applied to successful habeas petitioners.

Full post as published by Legal Theory Blog on December 22, 2009 (boomark / email).