The case against importing potential terrorists from Guantanamo Bay

Americans should be worried about the Obama administration’s renewed push to transfer Guantanamo “enemy combatants” and terror suspects into the United States, over the objections of Congress.

When our government brings these individuals into the United States, we will not be able to summarily expel them once we are through with them. Aliens present in the United States, even those found to be deportable as terrorists, are entitled to request from an Immigration Judge protection under the U.N. Convention Against Torture. If they demonstrate a more likely than not probability of torture in the proposed country of removal, the Immigration Judge is compelled to grant torture convention relief. The relief is non-discretionary.

{mosads}Given the taint surrounding the Guantanamo detainees and the shabby human rights records of the countries that spawned them, it is likely that many, if not all of the detainees will qualify for torture convention relief from deportation. Even those who fail in their bid for torture convention relief may still remain in the United States indefinitely if there is no country that will accept them.

The Department of Homeland Security may be able to short-circuit the inevitable torture convention claims of a former Guantanamo detainee if the State Department obtains a “diplomatic assurance against torture” from a foreign government agreeing to accept him. This mechanism however has rarely ever been used, possibly due to our government’s duty to maintain the confidentiality of the torture convention applicant.

After 90 days has elapsed after a final order of removal, the alien in DHS custody has the right to a “post-order custody review,” in which the government makes a determination as to whether it is foreseeable that it will be able to effectuate the alien’s removal within the foreseeable future. Failure of our government to obtain a travel document and permission from a foreign country to accept the GIMTO alum may result in that individual being released into the community at large on an “order of supervision” for an indefinite period of time. If he is deemed a serious threat to the community, he may kept in DHS custody even if there is little likelihood of a country accepting him.

Providing due process to those accused of wrongdoing outside of the United States is a laudable goal that is consistent with the core values of our country. If any Guantanamo detainee did not harbor hatred towards the United States before he was detained and subjected to “enhanced interrogation” for years in Guantanamo Bay, he certainly is likely to hate us by now. Bringing terror suspects into the heart of our country – and potentially keeping them here forever – is not an intelligent or humane solution to the thorny problem of the Guantanamo detainees. Some may be turned loose to roam among us. Others will languish in DHS administrative detention, possibly for life, which will not assuage the international outcry over their plight.

Unfortunately, it is likely that many of the cases against the terror suspects have been compromised by the detainees having been subjected to hash interrogation, and it is entirely conceivable that they will be able to prevail in court due to the inadmissibility of confessions obtained via torture.

The Immigration and Nationality Act provides that terrorists and suspected terrorists should be excluded from the United States, and for good reason. Our government should not be in the business of importing potential terrorists, especially when we never may be able to get rid of them.

Cohen is a member of the American Immigration Lawyers Association and The Florida Bar, with offices in Hallandale Beach and Fort Myers, Florida.