Despite the Supreme Court's rulings in Rasul v. Bush (holding that U.S. courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with the war on terror and held at Guantánamo), Hamdi v. Rumsfeld (holding that due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker), Hamdan v. Rumsfeld (holding that Combatant Status Review Tribunals lack the power to proceed because their structure and procedures violate both the UCMJ and the Geneva Conventions), and Boumediene v. Bush (upholding the habeas corpus rights of Guantánamo detainees and holding that Combatant Status Review Tribunals are an inadequate substitute for habeas review), the U.S. government maintains that it has the authority to detain so-called enemy combatants - and even individuals who are not enemy combatants - indefinitely.
Colonel Lawrence Morris, the Pentagon's lead prosecutor, stated that the government will consider certain factors when considering transfer of a detainee overseas, according to the Washington Post. "The critical factor is that they are held accountable for their conduct and that they are disabled for the appropriate time period from their involvement in terrorism. When out leaders evaluate whether to return them somewhere that is foremost in their mind, and they would not return them unless they were satisfied on both fronts." It is unclear why the U.S. government, which sought a 30-year sentence for Hamdan and fought against Military Judge Allred's application of a credit for time served, would now believe that Hamdan will be "disabled for the appropriate time period from [his] involvement in terrorism." Perhaps, the U.S. government has transferred Hamdan to Yemen to avoid complicated questions that are sure to arise, such as whether to close Guantánamo and how to handle the release of detainees. In addition, keeping released Guantánamo detainees out of the United States avoids a PR nightmare related to the U.S. government's manufactured legal scheme in the "war on terror."