The issue in Kiyemba v. Obama is whether the courts have the power to order an “alien” (non-U.S. resident) detainee held at Guantanamo Bay released into the United States, after determining the government has no grounds to keep holding him. But what if Congress then makes it impossible for the government to release the prisoner in the United States by withholding all necessary funding? Two separate bills signed yesterday — specifically, Sec. 1041 of the National Defense Authorization Act and Sec. 552(a) of the Homeland Security appropriations bill — appear to do just that. As Denniston points out, those laws open up a key question about Congress’ constitutional powers. In effect, it would mean that Congress could effectively suspend the prisoner’s right to habeas corpus – that is, to be released from unlawful detention.

Of course, by the time the court gets around to hearing the case this winter, President Obama may have already announced a new detainee policy, and Congress may have agreed to alter its spending restrictions. And if the Uighurs are all resettled, their case before the high court will be moot. But if the case survives until late winter, when the Supreme Court is expected to hear it, the administration and Congress may both get slapped down.

The court had previously put off deciding whether to take this case, at the request of the Obama administration, which was scrambling to find places for the Uighurs to go. But although several countries, including most recently the island of Palau, has agreed to take some of the Uighur detainees, at least one remained without a place to go. His brother, also detained, said he would not leave him.

In April, the U.S. Circuit Court of Appeals in Washington, D.C., ruled that even though the Uighurs were no longer considered dangerous and were being held unlawfully, the courts had no power to order the president to release anyone into the United States. Because the Uighurs cannot return to China, where they would likely be persecuted, and the U.S. government refused to release them in the United States, that left them stuck at the Guantanamo Bay prison indefinitely.

The Supreme Court now has the chance to decide whether federal courts have the power to change that.

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.

As the Washington Post reports today, the story is even sadder given that the older brother was only captured because he went searching for Bahtiyar after the younger brother left their homeland eight years ago.

Like the other Uighurs, the brothers are Chinese Muslims who face persecution in China and can’t be returned there. Although they have never threatened nor plotted against the United States, they were seized in Afghanistan and Pakistan shortly after the United States launched its war on al-Qaeda and the Taliban after the terrorist attacks of Sept. 11.

The men being considered are reportedly two Chinese Muslim Uighurs, an Uzbek and a Palestinian. The men the United States has been trying to relocate have all been deemed not to pose any security threat but cannot be returned to their native countries for fear of persecution and torture there.

Ireland, Portugal, France, Albania, the Pacific island nation of Palau and Bermuda have all already agreed to take about a dozen detainees since President Obama took office in January and promised to close the Guantanamo prison by January 2010.

The United States, however, has refused to accept any of the detainees cleared for release on its own soil, including those that U.S. federal judges have ruled were wrongly imprisoned by the United States for more than seven years.

Reports CQ:

Jay Alan Liotta, principal director of the Defense Department office responsible for detainee policy, told a House subcommittee on Thursday that he would not publicly comment on whether officials from China or any other nation were granted access to foreign citizens held at the detention facility.

Though he offered to provide the information in a closed-door session, “Lawmakers weren’t happy about his answer.”

When I wrote about this back in May, there were just a few murmurs about the matter in Congress, but there had already been an explicit acknowledgment of the fact in a 2008 inspector general report, though the charges had been largely overlooked.

According to a footnote in that IG report:

While the Uighurs were detained at Camp X-Ray, some Chinese officials visited GTMO and were granted access to these detainees for interrogation purposes. The agent stated that he understood that the treatment of the Uighur detainees was either carried out by the Chinese interrogators or was carried out by U.S. military personnel at the behest of the Chinese interrogators. He said he also heard from the Uighur translator that other Uighur detainees experienced this same treatment.

As CQ now writes:

Three former Uighur detainees submitted testimony through legal counsel on Thursday alleging that all 22 detainees of the Chinese Muslim minority group were interrogated by Chinese government officials during a seven- to 10-day visit in 2002.”

The former detainees testified that they were forced to provide their photographs and identities to the Chinese agents under the threat of torture and, under those agents’ orders, were denied food and water and isolated in a frigid room.

Although these charges have been around for more than a year now, CQ speculates that lawmakers may finally be paying more attention now that their recent clashes in China with the majority Han population have reportedly resulted in more than 150 deaths and 1,000 injuries.

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Less than a month ago these Chinese Muslim prisoners were the subject of intense debate in Congress and had no place to go, as Republicans vehemently opposed their release into the United States. Now, the Obama administration has apparently located two island paradises willing to take them.

“By helping accomplish the president’s objective of closing Guantanamo, the transfer of these detainees will make America safer,” said Attorney General Eric Holder in a statement today. “We are extremely grateful to the government of Bermuda.”

The Uighur prisoners have all been cleared for release for more than three years, after the government determined that none of them were “enemy combatants” as it had initially charged.

Buried in a 2008 Justice Department inspector general report is the strange fact that the U.S. government — surely knowing that the Uighurs were dissidents who’ve been persecuted and tortured in China (which the State Department has acknowledged) — not only allowed Chinese government interrogators to question the Uighurs at Gitmo, when almost no one else outside the U.S. government had access to the place, but used repeated sleep deprivation and interruption to soften them up for those interrogations.

According to the 2008 IG report (pdf), in footnote 134:

While the Uighurs were detained at Camp X-Ray, some Chinese officials visited GTMO and were granted access to these detainees for interrogation purposes. The agent stated that he understood that the treatment of the Uighur detainees was either carried out by the Chinese interrogators or was carried out by U.S. military personnel at the behest of the Chinese interrogators. He said he also heard from the Uighur translator that other Uighur detainees experienced this same treatment.

It’s a question that’s come up at recent House Judiciary Committee hearings on Guantanamo, but so far no one’s answered it: why were U.S. interrogators at Guantanamo Bay helping to “soften up” Chinese Uighur detainees on behalf of the Chinese government?

The release of the Uighurs, some of whom have been officially cleared for release from prison since 2003, is a critical step toward President Obama’s ability to close the U.S. detention facility at Guantanamo Bay by the end of this year, as he pledged to do during his first days in office.

As I’ve written before, the Uighurs were seized by U.S. forces in Afghanistan and Pakistan and sent to Guantanamo Bay. Some have been held there more than seven years. Although the Bush administration determined that they’re not “enemy combatants” (they were allegedly training to use weapons in Afghanistan, but likely against China, not the United States), they can’t be returned to China because they’re likely to face persecution there, where they’re wanted for supporting separatist activities.

U.S. government efforts to resettle the Uighurs in other countries, however, have failed, largely because former U.S. officials deemed them too dangerous to be released into the United States. Other countries were therefore understandably reluctant to accept them, although Albania agreed to take five former Uighur prisoners.

In October, a federal judge ordered that the Uighurs be released into the United States because the government had no legal justification for imprisoning them. But an appeals court reversed that decision, ruling that the courts have no authority to order the government to release any “aliens” into the United States; only the President and Department of Homeland Security have that power. The Uighurs recently sought review of that decision in the Supreme Court.

While the decision to release the Uighurs may be designed in part to quell the objections many lawyers and human rights advocates raised after the court of appeals’ ruling, The Los Angeles Times notes that the decision is not yet final — the Department of Homeland Security has reportedly “registered concerns about the plan.”

Well, yesterday the same D.C. Circuit Court issued another decision that’s essentially the flip side of the same coin:  the courts don’t have the power to keep the men at Gitmo, or to prevent their transfer to another country, either.

The situation arose because nine of the 17 Uighurs held at the U.S. detention facility at Guantanamo Bay, in addition to seeking habeas corpus relief that would release them, want assurances that they won’t be sent to a country that might torture them. Given that they are Muslim dissidents, that’s not an unreasonable concern. So, as with many of the Guantanamo cases, their lawyers have asked the district court to order the government to provide 30 days’ notice before transferring the detainees out of Guantanamo to another country.

For years, that wasn’t a problem. But ever since the court of appeals ruled that it doesn’t have the power to free the prisoners, the government started arguing — and the lower courts started agreeing — that maybe they don’t have the power to require notice of a transfer, either. After all, if the courts can’t control what the government does with the men, 30 days’ notice won’t accomplish anything.

Yesterday’s decision put another nail in the coffin of Gitmo prisoners’ habeas rights. Sure, the Supreme Court ruled in the case of Boumediene v. Bush that the government can’t eliminate the right of habeas corpus, but apparently that right didn’t actually mean anything.

“Ultimately, the question is whether the Supreme Court in Boumediene recognized a right that can’t be enforced,” says David Remes, a lawyer for 15 Yemeni detainees imprisoned at Guantanamo, who has won similar 30-day notice orders for some of his clients. “That can’t be what the court contemplated.”

That would make Boumediene a pretty hollow victory, Remes notes.

Although the government may promise that it’s not going to send prisoners to a country where they’ll be imprisoned again without cause (and without habeas rights) or tortured — which is, after all, against international law — the court is now saying that we’re just going to have to take the government’s word for it.

Given the previous administration’s record for respecting international law, and the fact that the Obama administration has not relinquished its right to indefinite detention of “enemy combatants” — or whatever it’s calling them now – that’s not particularly comforting.

As Judge Thomas Griffith, a Bush appointee, wrote yesterday in a powerful dissent in the D.C. Circuit case: “Critical to ensuring the accuracy of the government’s representations is an opportunity for the detainees to challenge their veracity.”

If the Supreme Court were to reverse the decision in the Kiyemba case I wrote about yesterday — 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 — it would presumably change the outcome of the Uighurs’ case, too. Unfortunately, it could be many months before that would happen, and in the meantime, the executive branch appears to have complete control over the fate of the Gitmo detainees — a fact which seems contrary to the whole purpose of the writ of habeas corpus itself.