“Even if the Obama administration continues to work to close Guantánamo, by pursuing a policy of indefinite detention without charge, the damaging policies that embody the prison will continue, as will the negative effects to American values, the rule of law, and our nation’s reputation abroad,” said Virginia Sloan, president of the Constitution Project. “The constitutional way to fulfill the president’s commitment to closing Guantánamo is to prosecute suspected terrorists in federal court, and to oppose the use of military commissions and indefinite detention without charge. There is widespread bipartisan support for closing Guantánamo in a way that returns our nation to its constitutional principles, as embodied in Beyond Guantánamo: A Bipartisan Declaration.”

After talking to some knowledgeable individuals, I think I need to revise and extend this post. I may have incorrectly suggested that the SCOTUS ruling Boumediene established a right for detainees to receive a trial, which I didn’t mean to suggest, because it doesn’t: it establishes that detainees can contest their detention by the government, a narrower class. If they lose their habeas hearings, as some have, then they’re out of luck, trial-wise. As of right now, the Supreme Court has not directly and decisively ruled on the question of whether the government has the power to detain people in the war against al-Qaeda indefinitely and without charge. (Not that I’m a lawyer … ) The point I was trying to make in the earlier post was that the vector of court rulings since 2004 has been to erode the government’s power to use the so-called “war on terror” as an all-purpose rationale for all manner of detentions.

Salim Hamdan, Osama bin Laden's alleged driver, was held in Cuba at Guantanamo Bay prison camp like these detainees. (Department of Defense photo by Petty Officer 1st class Shane T. McCoy, U.S. Navy)

As the pressure grows on the Obama administration to close the prison camp at Guantanamo Bay by January, so too does the risk that some of the Guantanamo detainees cleared for release could be returned to countries where they’ll face persecution or torture, say human rights experts. The men remaining at Guantanamo mostly come from countries that are notorious for torturing prisoners. And the Obama administration has not ruled out returning the men to those places, even though, labeled “enemy combatants” by the Bush administration, they could face retaliation back home.

Meanwhile, it remains unclear whether the courts can step in and stop the administration from returning prisoners to countries known to torture. In April, the D.C. Circuit Court of Appeals ruled that the federal courts have no authority to interfere with where the administration wants to send a Guantanamo detainee. The lawyers on that case, Kiyemba v. Obama, plan to appeal to the Supreme Court this month, but in the meantime, men from Algeria, Tunisia, Libya and other countries notorious for abusing prisoners could be returned to those countries over their objections. Their lawyers are now scrambling to try to stop that.

Illustration by: Matt Mahurin

On Tuesday, the Supreme Court deferred its decision in a related case on whether to review a ruling that judges have no authority to order Guantanamo detainees released into the United States. The court’s punt came in the case of 13 Uighurs, the Chinese Muslim prisoners who have been cleared for release by the U.S. government but cannot return to China for fear of persecution there. But while the Uighurs in that case have been denied the right to be released into the United States, in a way, they’re lucky; the Obama administration has said it will not return them to China.

To be sure, the administration has also promised not to send any detainees to countries where they’re likely to be tortured. But it has also said that in some situations it will accept “diplomatic assurances” from those countries that it will treat the returning detainees humanely. These are, essentially, promises from a torturing country that it won’t torture a particular individual being sent there. But how reliable are those “assurances” really?

Human rights advocates say they’re not at all.

“The record on diplomatic assurances is extremely poor,” said Joanne Mariner, Director of the Terrorism and Counterterrorism program at Human Rights Watch. “It’s rare we see the text of the assurances, so it’s not clear what they consist of, and whether there’s a post-return monitoring mechanism. But there are some very well known cases in which people were sent to Egypt and Syria with diplomatic assurances, and then were tortured.”

Judy Rabinovitz, Deputy Director of the ACLU’s Immigrants’ Rights Project, agrees. “We think there are real problems inherently with the reliability of such assurances and the ability to monitor them,” she said. After all, she noted, most of these countries have signed the United Nations Convention Against Torture, but they’re still torturing prisoners. “When you have a country that’s notorious for torturing, how can diplomatic assurances be reliable? They know they’re not supposed to torture. They’ve signed a treaty. How is an assurance worth more than a treaty?”

One of the most infamous recent cases of torture following assurances from a foreign government involved the Canadian citizen Maher Arar, arrested at JFK airport and sent to Syria for interrogation, supposedly with diplomatic assurances that he’d be treated humanely. Arar says he was brutally tortured there. Human Rights watch has released several reports on the increasing reliance of the United States and other countries on such “diplomatic assurances,” and documented that in many cases, they have not worked. What’s more, it’s often impossible to know whether an individual returned has been tortured, since the country that returns the prisoner has no credible way of determining how he was treated, and both countries have an incentive to say the detainee was treated humanely.

Technically, the United States is bound by the Convention Against Torture and the International Covenant on Civil and Political Rights not to send people to countries where they face a real risk of torture. (The Bush administration argued those laws did not apply to prisoners held abroad.) But as Mariner explained, that often leads those countries to rely on “diplomatic assurances” to say the risk has been diminished. That’s exactly what the Bush administration said it did when it sent terror suspects for questioning under its “extraordinary rendition” program, and many of those suspects claim they were subsequently tortured.

The choice, says Mariner, is either to trust the discretion of the executive branch, or to have some sort of system for deciding the legitimacy of the prisoner’s fears. The D.C. Circuit ruling eliminated the possibility of the federal courts playing that role. That ruling took effect in early September, clearing the way for the U.S. government to begin to return Guantanamo detainees to countries known to torture prisoners.

The administration announced earlier this week that it has cleared 75 Guantanamo detainees for release. The list includes nine prisoners from Tunisia, seven from Algeria, four from Syria, three from Libya, three from Saudi Arabia, two each from Uzbekistan, Egypt, the West Bank and Kuwait, and one each from Azerbaijan and Tajikistan. None of these countries has a strong human rights record.

About 30 of the prisoners cleared for release fear return to their home countries, said Mariner.

Ahmed Belbacha is one such prisoner at risk. He fled his home country of Algeria in 1999 during a civil war between government forces and a militant Islamic group. A former soldier in the Algerian army, he was at risk from both sides. He sought asylum in the UK, where he worked cleaning rooms in a hotel. In 2001, however, while traveling in Pakistan where he was offered free Islamic education, he was captured by the Pakistani Army and turned over to the U.S. military shortly after the U.S. invasion of Afghanistan. The U.S. military deemed Belbacha an “enemy combatant” because he had attended prayer services led by a fundamentalist sheik, travelled on a fake French passport and received small arms training in Afghanistan. Belbacha was sent to the prison at Guantanamo Bay in 2002. But in 2007, the Bush administration decided that he did not pose a threat and cleared him for release. But by this time, Belbacha was afraid to go home; he fears retaliation and torture from both the Algerian government and radical Islamists.

In 2007, Belbacha’s lawyers told the court that they’d learned that the U.S. government planned to return their client to Algeria, and filed an emergency motion asking the court to prevent his transfer. The court ruled it did not have the power to do that, and Belbacha appealed. The court of appeals held off deciding the case though, while waiting for the Supreme Court to rule on whether detainees have the right to challenge their detention in federal courts. (It ruled they did last year in Boumediene v. Bush.) In the meantime, the court temporarily enjoined the U.S. government from sending Belbacha to Algeria.

Then, in April, the D.C. Circuit ruled in Kiyemba v. Obama that the courts have no authority over where the government sends the men. Now, Belbacha is worried again, and his lawyers are scrambling to keep the court from issuing an order that will allow the government to transfer Belbacha to Algeria. His lawyers say he’s now even more likely to be tortured by the Algerian government if he returns there because his struggle to avoid transfer there has drawn international attention and support from human rights groups. As his lawyers put in their brief to the court: “He believes that his strenuous and widely-publicized efforts to avoid transfer to Algeria place him in the government’s crosshairs.”

Belbacha’s lawyers have filed a motion with the court asking that his case be “held in abeyance” until the lawyers handling the Kiyemba case have an opportunity to file a petition to the Supreme Court, and then until the Supreme Court decides whether to hear the case. Holding the case off would leave in effect a June 2008 district court order prohibiting the government from transferring him to Algeria.

The Department of Justice, meanwhile, is vigorously fighting to lift that order, arguing that the D.C. Circuit has already decided that the courts don’t have authority to prevent a detainee’s transfer, and that the government has promised not transfer any detainee to a country where “he is more likely than not to be tortured.”

That’s not sufficient assurance for Belbacha and his lawyers, however. “The U.S. has not assured Belbacha that he won’t be sent back,” said David Remes, Executive Director of Appeal for Justice and a lawyer for Belbacha. As the law stands now, there is no court or independent arbiter to whom Belbacha can appeal.

Human rights advocates say that Algeria’s abusive treatment of two other prisoners recently returned there by the UK raises serious concerns. According to Human Rights Watch, the men were reportedly threatened and beaten in custody. Statements coerced from them were used against them at trial, and both were sentenced to several years’ imprisonment.

Lawyers for Guantanamo detainees from Libya and Tajikistan who similarly fear persecution if returned home have also asked federal judges to at least temporarily prevent their clients’ transfer until the Supreme Court can consider whether courts have any authority over the administration’s decisions about where to send them.

The Obama administration, in another context, has similarly indicated that it is willing to send people to countries known to torture. In making recommendations on the transfer of terror suspects to other countries for interrogation – commonly known as renditions – an Obama administration task force recommended that renditions be permitted to countries known to practice torture, so long as the administration obtains assurances that the suspect will be treated humanely. Although the Obama administration has promised to monitor and enforce those assurances, Human Rights Watch has found that “monitoring is no panacea” because the prisoners cannot be guaranteed confidentiality. Their reports of abuse to foreign monitors would be easily traceable to them, placing them at serious risk of retaliation.

The little-noticed provision raises constitutional questions about who has the power to control the release of detainees — the president, Congress or the courts?

Lawyers representing Guantanamo detainees are already calling the law an unconstitutional suspension of the writ of habeas corpus, as SCOTUSblog notes today. Sabin Willett, the lead lawyer representing the 13 Uighurs who have appealed to the Supreme Court to review their case, today wrote to the court urging it to review the decision of the U.S. Circuit Court of Appeals in Washington, D.C., in Kiyemba v. Obama, which prohibits the federal courts from ordering any detainees released into the United States. As a result, while according to American Civil Liberties Union lawyer Jonathon Hafetz, Guantanamo detainees have so far won about 26 of 31 habeas corpus cases decided by federal courts so far, most remain imprisoned at Guantanamo Bay. Lawyers, including Willett, have argued that the result is effectively to deny them the right to habeas corpus that the Supreme Court ruled they have in Boumediene v. Bush.

In his letter today, Willett urged the Supreme Court to take up the case, saying that “a failure either to reverse or affirm the decision below will leave unsettled a question that goes to the heart of habeas jurisdiction. …”

The court is expected to decide today whether or not to grant certiorari and hear the appeal in the Kiyemba case.

It’s a sad way to mark the anniversary of such a momentous decision. But for those detainees cleared for release but with nowhere to go, Boumediene has been a hollow victory. Some, like the Chinese Muslim Uighurs, can’t be returned home for fear of persecution, while the U.S. government has been holding some Yemenis because it doesn’t trust the Yemeni government to keep tabs on them back home. (The Obama administration is reportedly trying to negotiate their transfer to Saudi Arabia.)The problem is partly that the D.C. Circuit court ruled in Kiyemba v. Obama that the federal courts don’t have the authority to actually order the executive branch to release any foreign nationals into the United States, even if they’ve proven to a federal court that the government has no grounds to detain them. The power to release foreigners into the United States is reserved to the immigration authorities at the Department of Homeland Security, which so far hasn’t given any of these detainees the green light. The situation is complicated by the fact that a 2005 law may bar the release of  “any alien who had engaged in various forms of terrorist activity or training,” as some Republicans claim. The Uighurs, for example, were allegedly captured by U.S. forces while training in Afghanistan to use weapons, they say in defense against Chinese authorities who persecute them.

Lawyers representing the Uighurs in the Kiyemba lawsuit have appealed that ruling to the Supreme Court, which is scheduled on June 25 to consider whether it will hear the case. In the meantime, about 232 prisoners remain stuck at Guantanamo, as the January deadline for closing the military prison draws nearer.

While former Bush administration lawyers might argue his treatment wasn’t actually torture, Boumediene — an Algerian working for the Red Crescent in Bosnia where he lived with his wife and two daughters when he was arrested in 2001 — was unequivocal. “I don’t think,” he said when asked if it was torture. “I’m sure.”

The United States responded to ABC that it’s not U.S. policy to torture prisoners. But the Boumediene case cries out for not just an investigation, but prosecution and accountability for those responsible — as well ascompensation for the victims of U.S. abuse.

Boumediene is just one of about 700 men swept up by the U.S. military after Sept. 11, 2001 based on little or no evidence. Originally arrested by Bosnian police in October 2001, he was charged with conspiracy to blow up the U.S. and British embassies in that country. When the Bosnians found no evidence to support the charges — charges Boumediene consistently vehemently denied — the charges were dropped.

But the Bush administration pressured the Bosnian government not to release him, and instead to turn him over to the U.S. military, which sent him to Guantanamo Bay.

As ABC News recounts, two weeks later, President Bush boasted Boumediene’s arrest as a victory in his “war on terror.”

“Our soldiers, working with the Bosnian government, seized terrorists who were plotting to bomb our embassy,” Bush said in his address.

In fact, as ABC notes, officials of the Bush administration have never provided any credible evidence to support that charge.

Last June, the U.S. Supreme Court ruled that, contrary to the Bush administration’s claims, Boumediene and his fellow Gitmo prisoners had the right to challenge their indefinite detention by the government. In November, a federal judge ordered Boumediene’s release. Still, the U.S. government insisted he could not be released within the United States, and it wasn’t until France agreed to accept Boumediene in April that he was able to be freed.

Despite Boumediene’s seven and half year ordeal, he is, in a sense, one of the lucky ones. Another 240 men remain at Guantanamo Bay, most of whom have not yet had the same opportunity to defend themselves. About 60 have already been cleared of wrongdoing and approved for release, yet the United States refuses to accept them and can’t seem to negotiate their transfer anywhere else, either, given that the United States has branded them terrorists.

Not surprisingly, Boumediene told ABC News that he’s considering bringing a lawsuit against former Bush administration officials seeking compensation for his wrongful imprisonment and abuse.

“I cry, just I cry,” he told ABC News, because after seven years in the Guantanamo prison, “I don’t know my daughters.”

Update: Kudos to reader json, who points out that Dan Rather interviewed Boumediene last week — which would appear to undermine ABC’s claim of exclusivity…

It had been the hope of administration legal advisers that a majority of the 240 [Guantanamo detainees] — perhaps a large majority — would be tried in federal courts. Then they discovered that the evidentiary thresholds for doing so were too high given the quality of information the Bush government had collected about the detainees, and they subsequently concluded that Article III trials wouldn’t be as swift as an option that they wanted to reserve for only a couple dozen high-value detainees: the military commissions.

To say that the “evidentiary thresholds” for trying the detainees in civilian court is “too high” is another way of saying there isn’t sufficient evidence on the face of it for the constant invocation that the detainees are terrorists. If it can be proven that a detainee has given material support to terrorists or contributed to an illegal act, he ought to be convicted. If it can’t, then a detainee ought to be freed. What would happen in that case? Someone who isn’t a terrorist would be free.

The detainees, according to the Supreme Court’s Boumediene decision last year, have the right to habeas corpus, full stop. There’s no putting that bit of juridical toothpaste back in the tube. As a result, they have to be provided with some sort of trial. Everything else is denying reality. The military commissions represent a method of getting convictions rather than a method of getting justice. Just saying someone is a terrorist over and over again doesn’t make it the case.

Well, you say, what about battlefield-collected evidence that might not pass the muster of a criminal court? A reasonable objection. But it’s hard to believe there are actually judges in these cases who would be anything but deferential to prosecutors’ claims about what ought to be admissible — in camera evidence, stuff like that — and even harder to believe that any American jury wouldn’t be extremely reluctant to render a not-guilty verdict.

Donald Rumsfeld called the Gitmo detainees "the worst of the worst." (Wikimedia Commons)

In what’s being called the first major challenge of the Obama administration’s detention policy, lawyers on Monday filed a petition with the U.S. Supreme Court to review the case of Kiyemba v. Obama, in which a Court of Appeals ruled that federal courts do not have the power to order innocent Guantanamo detainees released into the United States.

The significance of that ruling goes far beyond the now-notorious case of the 17 Chinese Muslim Uighurs directly involved. At its core, the petition asks the Supreme Court more broadly: does a federal court have any power at all over innocent prisoners of the “war on terror”?

Illustration by: Matt Mahurin

In the Kiyemba case, the Court of Appeals for the District of Columbia ruled that even though the government had no grounds to continue to hold the Uighurs, imprisoned for more than seven years, the federal courts had no authority to order them released into the United States, either. Their lawyers say that makes their right to habeas corpus — confirmed by the Supreme Court last June in Boumediene v. Bush — meaningless.

“What happens in a habeas case is the judge orders the jailer to release the prisoner,” explained Sabin Willett, the lead lawyer representing the Uighurs. “But there’s no sovereign [government] the court can order except our own. Now the DC circuit is saying the court can’t even do that.”

The result is that not only are these Chinese Muslim dissidents still stuck at Guantanamo Bay, but the Obama administration has used the Kiyemba ruling broadly to argue that all habeas corpus proceedings brought by prisoners approved for release should be halted because the courts have no power to release the men from prison anyway. In other words, when it comes to innocent men imprisoned indefinitely at Guantanamo, the judiciary has no role to play at all.

What’s more, the Obama administration has been using the latest Kiyemba ruling to seek a ban on all lawsuits brought by former Guantanamo prisoners claiming constitutional violations by U.S. military officials, claiming that the D.C. court ruled that prisoners at Guantanamo Bay have no due process rights.

As I’ve written before, the Uighurs were abducted in Afghanistan (some claim they were sold to U.S. troops for bounty) and sent to Guantanamo Bay, where they’ve been imprisoned for more than seven years even though the Department of Defense and a federal judge have said that they’re not “enemy combatants” and were not fighting against the United States. Some have been cleared for release since 2003. Because they are a persecuted minority in China, however, they cannot return home because they’d face a significant risk of being tortured.

In October, district court Judge Ricardo Urbina ruled, based on “the court’s authority to safeguard an individual’s liberty from unbridled executive fiat” that they must be released.

The Bush administration appealed, arguing that the federal courts have no power to order the release of any foreigners into the United States. That’s a matter only for the executive and his immigration authorities, the government reasoned. Unless the Uighurs apply for asylum and win, they’re doomed to remain at Guantanamo until the administration can find some other place for them to go.

So far, only Albania has been willing to take any; five were sent there in 2006. The U.S. government — which under President Bush deemed all Guantanamo prisoners “the worst of the worst” — hasn’t been able to convince other countries to accept them.

In their petition to the Supreme Court, Willett and his colleagues write that instead of applying the usual standard for a petition for habeas corpus that requires the government to justify the men’s imprisonment, the court wrongly put the burden on the Uighurs to prove their right to release.

Significantly, “no evidence was ever offered to the district court demonstrating dangerousness, involvement in terrorism, criminal activity or any other putative basis for detention,” the lawyers write in their brief to the Supreme Court. “To the contrary, the record contains powerful evidence that Petitioners release would create no risk to the public.”

Given one last opportunity to provide such evidence at the district court hearing, the Justice Department lawyer responded: “I don’t have available to me today any particular specific analysis as to what the threats of — from a particular individual might be if a particular individual were let loose on the street.”

Continuing to hold the innocent men indefinitely, then, violated a “fundamental right of liberty” that the courts must protect against “unbridled executive fiat,” the court ruled. “[T]he carte blanche authority the political branches purportedly wield over [the Uighurs] is not in keeping with our system of governance,” Judge Urbina wrote, and ordered that the Uighurs be released.

A three-judge panel of the Court of Appeals, however, disagreed. In a 2-1 decision, the court decided that the question ultimately fell under the immigration laws, even though the Uighurs had never applied for refugee status or to immigrate to the United States. Citing a 1889 case that upheld the executive’s right to exclude all Chinese immigrants, the court held that it is “the exclusive power of the political branches to decide which aliens may, and which aliens may not, enter the United States, and on what terms.”

“Not every violation of a right yields a remedy, even when the right is constitutional,” the circuit court majority wrote, and ultimately, no alien has a right to admission to the United States. The court could provide nothing more for the prisoners than an assurance that the executive branch would keep trying to resettle them in another country.

Lawyers for the prisoners argue that the ruling essentially eviscerates the Supreme Court’s ruling in Boumediene v. Bush, which confirmed that prisoners at Guantanamo Bay have the right to habeas corpus review.

“The Kiyemba majority’s taxidermy would hang Boumediene as a trophy in the law library, impressive but lifeless,” write the lawyers in their petition.

Put another way, “if the court doesn’t take this case and reverse this case, then Boumediene was a whole lot of nothin’,” said Willett yesterday. “Because right now they’re in the strange situation that they’re all sitting in Guantanamo.”

In effect, the ruling applies not only to the 17 Uighurs but to every detainee that has been, or will be, cleared for release, he said. So far, more than 60 prisoners have been cleared but remain at the prison. “You can’t order a foreign government to accept anyone, even its own citizen,” said Willett. “So the court can’t make those prison gates open in any case if they don’t take and reverse this case.”

Some legal experts are more sympathetic to the government’s view that the prisoners’ release should be handled by the executive.

Glenn Sulmasy, for example, an expert on national security law at the U.S. Coast Guard Academy, said the D.C. Circuit was right that the district court’s ruling interfered with immigration laws. The Court of Appeals was “trying not to trump existing immigration law that might have long term consequences for those who did not live in the U.S.,” he said.

Indeed, a part of the federal immigration law — the REAL ID Act of 2005 — would exclude any immigrant who has received terrorist training or belonged to an organization that promotes terrorism. Although the Uighurs were not planning to fight the United States, at least some are alleged to have been in weapons training in Afghanistan.

“The Uighurs are excludable on both grounds, even if one accepts, for argument’s sake, that they were trained for the purpose of conducting operations against China,” wrote Andrew McCarthy, senior fellow of the National Review Institute in a recent debate in The New York Times about the Uighurs’ situation.

To the lawyers representing the prisoners, however, that’s irrelevant, because the Uighurs were not trying to immigrate to the United States. The case therefore shouldn’t be decided under immigration law, but under the law governing the writ of habeas corpus. “The core proposition of the Great Writ is that the jailer has the burden to demonstrate positive law authorizing imprisonment,” they write in their brief to the Supreme Court. “Where he cannot do so, the court must order release, and the jailer must comply.”

More broadly, the Uighurs’ case highlights the complex problem facing the Obama administration due to Bush administration’s waging of the so-called “war on terror.”

“The authorization for the use of military force was so broad, using terms like the ‘war on terror,’ that it provided an opportunity for folks we were not engaged in armed conflict with to get swept up in this,” said Sulmasy. “Words matter. ‘War on terror’ means we’re at war against all terrorists. Even folks like the IRA, The Red Brigades, Shining Path, FARC. But we’re clearly not at war with those people,” he said. “What we’re really at war with is al Qaeda.” Because of the language used, “we’re holding folks alleged to be terrorists, but not enemies of the United States.”

How the Supreme Court will view the case — and how the Obama administration, which has so far supported its predecessor’s broad claims of executive power, will argue it — is hard to predict.

“There are no exceptions to the habeas provision as written in the constitution that would permit this kind of detention,” said Diane Marie Amann, a law professor at University of California, Davis who specializes in international and cross-border crime. Then again, she added: “the constitution wasn’t written after September 11.”

Following closed-door hearings in which the Dept. of Justice presented its full justification for holding the five Algerian men, detained in Bosnia in 2001 and held in Guantanamo Bay for the last seven years, Judge Richard J. Leon of Federal District Court in Washington ruled that the government had presented insufficient evidence to continue holding the men. (He did allow them to continue holding one other prisoner about whom the DOJ also presented evidence.)

Included among the men freed was Lakhdar Boumediene, the subject of the landmark case, Boumediene v. Bush, which established their right to habeas corpus proceedings.

The Times also notes, however, that the men aren’t likely to be immediately let go, either; Dept. of Justice lawyers are expected to appeal.

In a statement issued this afternoon, the DOJ said that while it was pleased it was permitted to hold onto one of the detainees, “we are . . . disappointed by, and disagree with, the Court’s decision that we did not carry our burden of proof with respect to the other detainees.”

The DOJ added: “we are promptly reviewing the decision with respect to the other five petitioners. But we also think that this ruling demonstrates the need for Congress to enact procedures that allow these petitions to be adjudicated in a way that is fair to the detainee but that allows the Government to present its case without imperiling national security.”

The Judge in the case, however, Judge Richard Leon, in an unusual statement actually asked the government not to appeal the ruling, saying that, as reported on SCOTUS blog: “seven years of waiting for our legal system to give them an answer to their legal question is enough.”

The DOJ has been working hard in recent weeks to keep the habeas corpus cases filed by hundreds of detainees from moving forward, even though the Supreme Court ruled in the Boumediene case in June that they’re entitled to challenge their detention. On Tuesday, Justice Dept. lawyers filed an opposition to an order by another federal district court judge handling the cases of more than 100 Guantanamo detainees. The judge had ordered the government to turn over the legal and factual basis for holding the men, and all exculpatory evidence.

On Tuesday, the government opposed the judge’s order. In an e-mail sent to lawyers handling the cases last week, the government lawyers had called the court’s order to turn over evidence “legally inappropriate and unworkable.”