The Washington Independent » D.C. Circuit

Supreme Court to Hear Uighurs’ Gitmo Case

Daphne Eviatar — Tue, 20 Oct 2009 14:55:27 +0000

The Supreme Court just announced that it will hear the case of the Chinese Muslim Uighurs — detainees at Guantanamo Bay cleared for release but still in prison there — to decide whether a court can order the government to release detainees into the United States.

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.

Federal Court Clears Way for Forced Transfer of Gitmo Prisoners

Daphne Eviatar — Wed, 09 Sep 2009 12:54:54 +0000

In yet another case that questions the power of federal courts to rein in the government’s executive branch, the U.S. Circuit Court in Washington, D.C., on Tuesday issued a mandate that allows the government to send up to 150 Guantanamo detainees to other countries over the prisoners’ objections, Lyle Denniston at SCOTUSblog reports. The ruling appears to contradict several lower court orders requiring the government to give the court 30 days’ notice before transferring any prisoners.

In a related case, the Supreme Court has been sitting on a petition for review filed by lawyers representing Chinese Muslim Uighurs, in which the D.C. Circuit held that federal judges have no power to order any prisoners released into the United States. In both cases, the prisoners fear torture if returned to their home countries, or oppose being transferred beyond the reach of federal law that allows them to challenge their detentions

Lawyers for the detainees are already moving to seek Supreme Court review to prevent their clients’ involuntary transfer. At the same time, lawyers for an Algerian prisoner, Ahmed Belbacha, asked the Circuit Court to hold off his transfer to Algeria, where he fears he’ll be tortured, until the petition to the Supreme Court is filed. Human rights groups have urged the Obama administration to allow such prisoners to be released into the United States instead of sending them to countries where they’re likely to face torture.

Will SCOTUS Stop Congress’ Power Grab?

Daphne Eviatar — Wed, 24 Jun 2009 13:27:12 +0000

On Thursday, the Supreme Court will meet to decide, among other things, whether to take up the case of Kiyemba v. Obama, in which the U.S. Circuit Court of Appeals in Washington, D.C., ruled that federal courts do not have the power to order any Guantanamo detainees released into the United States.

As Lyle Denniston at SCOTUSblog noted earlier this week, the appeal by lawyers for 13 Chinese Muslim Uighur prisoners still held at Guantanamo Bay years after being cleared for release, would test the scope of the court’s ruling in the landmark case of Boumediene v. Bush that Guantanamo detainees have a right to challenge their indefinite imprisonment.

The real question is: Does the right to habeas corpus have any meaning if the courts can’t order the prisoners released?

Meanwhile, as Denniston also points out, Congress has already taken significant measures to take that power over Gitmo detainees into its own hands. The new defense budget sent to President Obama last week specifically bars any spending towards the release of any Guantanamo prisoners into the United States. It also restricts the president’s ability to release prisoners to any other country and he must send Congress a secret report on his plans 15 days before transfer.

The effect of these budgetary constraints on the president is, writes SCOTUSblog, “to restrict in major ways the President’s use of his powers under Article II” and also to restrict the power of the federal courts – the power at issue in Kiyemba. It could even control what happens to the rest of the Uighurs involved in that case. (Four, as we know, were recently transferred to Bermuda.)

The Obama administration is expected to notify the Supreme Court before Thursday that it will sign the new spending bill, “perhaps to reinforce its earlier argument that the Court should deny review” of Kiyemba, speculates SCOTUSblog.

The odd thing is, while Kiyemba left complete power over the detainees to the president — which is why he doesn’t want the Supreme Court to consider reversing it — the spending bill hands that power to Congress.

If the Supreme Court does agree to hear and decide the Kiyemba case, it could reverse the decision and confirm that judges have the authority to order prisoners released, thereby affirming the role of the federal courts. But if it denies review and lets the decision stand, the effect, oddly, may be to hand to Congress virtually unlimited authority over the fate of the more than 200 remaining Guantanamo prisoners.

Anniversary of Boumediene Decision Marked By U.S. Refusal to Accept Cleared Detainees

Daphne Eviatar — Fri, 12 Jun 2009 16:42:52 +0000

Lyle Denniston at SCOTUSblog reminds us that today is the one-year anniversary of the Supreme Court’s landmark decision, Boumediene v. Bush, which confirmed that Guantanamo Bay detainees have the right to challenge their detentions in U.S. courts. Coincidentally, today the Washington Post also reported on its front page that the Obama administration has given up on resettling even innocent Guantanamo detainees, cleared either by the courts or by the Defense Department, here in the United States.

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.

Federal Appeals Court Rejects Torture Victims’ Suit (Again)

Daphne Eviatar — Fri, 24 Apr 2009 19:22:47 +0000

The U.S. Court of Appeals for the D.C. Circuit ruled today (pdf) that four British men who say they were tortured while imprisoned at Guantanamo Bay have no right to seek damages from U.S. government officials.

Former Secretary of Defense Donald Rumsfeld and the ten other senior military officials named in the lawsuit have immunity, the court ruled, because “[n]o reasonable government official would have been on notice that plaintiffs had any Fifth Amendment or Eighth Amendment rights.” Although the Supreme Court ruled last June in Boumediene v. Bush that detainees at Guantanamo have the right to habeas corpus, the court today ruled that “At the time of their detention, neither the Supreme Court nor this court had ever held that aliens captured on foreign soil and detained beyond sovereign U.S. territory had any constitutional rights…”

The case, Rasul v. Myers, which I’ve written about here and here, was on remand from the Supreme Court, which had instructed the D.C. Circuit to reconsider its previous ruling dismissing the case in light of the high court’s decision in Boumediene. To the dismay of many civil rights advocates, the Obama administration, like the Bush administration before it, insisted that even if the men were tortured, the case should be dismissed because U.S. government officials could not have known at the time that they were violating established rights, so they’re entitled to immunity.

The D.C. district court that initially heard this case had similarly dismissed the constitutional claims, but ruled that the four former prisoners had rights to sue under the Religious Freedom Restoration Act, because they hadn’t been allowed to practice their religion and their Korans had been desecrated. The appellate court today reaffirmed its earlier decision that because the men are “aliens” and not residents of the United States, they are not “persons” entitled to protection under the statute.

Reached this afternoon, Katherine Toomey, a lawyer at the firm Baach Robinson & Lewis, which is representing the four British men along with the Center for Constitutional Rights, said that the lawyers are now considering whether to ask for a re-hearing by the full court of appeals, or to seek review again in the Supreme Court.

D.C. Circuit Court Rules Courts Have No Power Over Gitmo Prisoners — Again

Daphne Eviatar — Wed, 08 Apr 2009 12:55:37 +0000

Yesterday, I wrote about the 17 Chinese Uighurs’ petition to the Supreme Court challenging the decision of the U.S. Court of Appeals for the D.C. Circuit ruling that the federal courts have no authority to release the prisoners, even if they’ve been wrongfully imprisoned for years.

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.

Obama Justice Department Urges Dismissal of Another Torture Case

Daphne Eviatar — Thu, 12 Mar 2009 22:46:54 +0000

In another move that suggests the Obama Department of Justice is not making many big policy breaks with its predecessor when it comes to the legal rights of Guantanamo Bay detainees, the department filed a brief renewing the government’s motion to dismiss the case of Rasul v. Rumsfeld.

The case is very similar to the lawsuit filed by U.S. citizen and former enemy combatant Jose Padilla against former Deputy Assistant Attorney General John Yoo, which I’ve been following. The plaintiffs in Rasul v. Rumsfeld allege that former Defense Secretary Donald Rumsfeld and other senior Bush officials are responsible for their torture; prolonged arbitrary detention; cruel, inhuman or degrading treatment; cruel and unusual punishment; denial of liberties without due process, and preventing the exercise and expression of their religious beliefs.

According to their legal complaint, Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed claim they traveled to Afghanistan in October 2001 to offer humanitarian relief to civilians. In late November, they were kidnapped by Rashid Dostum, the Uzbeki warlord and leader of the U.S.-supported Northern Alliance. He turned them over to U.S. custody – apparently for bounty money that American officials were paying for suspected terrorists. In December, without any independent evidence that the men had engaged in hostilities against the United States, U.S. officials sent them to Guantanamo Bay. Over the next two years, they claim — as does a fourth British man — that they were imprisoned in cages, tortured and humiliated, forced to shave their beards and watch their Korans desecrated, until they were returned to Britain in 2004. None were ever charged with a crime.

Dismissed at the urging of the Bush administration, the case was appealed to the U.S. Supreme Court. In December, the case was sent back to the U.S. Circuit Court of Appeals in Washington for reconsideration, because the Supreme Court had ruled in Boumediene v. Bush that Guantanamo detainees have the right to challenge their detentions. It wasn’t clear what effect that ruling might have on the Rasul case.

Although some civil rights lawyers had hoped the Obama administration would change the government’s position — or at least try to settle this case, which is at the very least an embarrassment to the United States – the former prisoners had no such luck. Today, the Justice Department filed a brief arguing, as it did in Padilla’s case against Yoo, that government officials are not liable for torture, abuse, denial of due process or religious rights, because the right of Guantanamo prisoners not to suffer those abuses at the hands of the U.S. government was not clearly established at the time.

That would seem to contradict previous statements by President Obama and Attorney General Eric Holder that torture (including waterboarding) and other abuses are clearly illegal, now and always, and that the president can’t simply override that prohibition. It also may discourage those who are hoping the president will eventually support prosecutions of former Bush officials for exactly those crimes.

Reached today, the lead lawyer on the case, Eric Lewis, a partner at the Washington-based law firm, Baach Robinson & Lewis, said he was “disappointed” but “not surprised.”

However, as I’ve pointed out before in the context of the Yoo case, the defense does raise some serious questions about whether the Obama Justice Department really ought to be defending Donald Rumsfeld and his former colleagues in this case at all.

I’ll be writing more about this case and others like it, as well as their implications, in the coming week.