One of the many interesting issues raised by the decision to try Khalid Sheikh Mohammed and other terrorist suspects in New York is whether transferring them to New York gives them any additional rights that they could assert to try to stop the prosecution against them. On Wednesday, the seven GOP Senators on the Judiciary Committee (including my former boss, Senator Cornyn) sent a letter asking the Administration if the transfer could somehow change the detainees’ immigration status. And others may be wondering if the transfer could create constitutional rights, such as Fourth Amendment, Fifth Amendment, or Due Process rights. The question is, does the transfer from one place to another itself create any rights?
The Fourth Amendment question has an easy answer: The detainees would not acquire any Fourth Amendment rights because their presence in the United States is involuntary. See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). As for whether they picked up any other rights in the transfer, it seems kind of hard to answer because we still don’t know what rights they had while at Gitmo. With habeas jurisdiction established, courts were just beginning to get to the question of what rights the detainees actually had; without knowing that, it’s not clear how much the transfer could add.
More broadly, I tend to think that the rights question won’t matter so much in the end. The Obama Administration presumably agreed to transfer these guys because they were sure they would be convicted either way. I take that to be the gist of Obama’s response to the idea that it is offensive for KSM to get lots of rights in a criminal trial: “I don’t think it will be offensive at all when he’s convicted and when the death penalty is applied to him.”