First, Gibbs told reporters that more transfers of Guantanamo detainees out of the prison camp “have taken place in the past eight months than have taken — than took place in the previous eight years.”

Uh, wrong. As Linzer points out, the Obama administration has transferred 31 detainees in the last eight months, as compared to some 520 transferred by the Bush administration before that.

Gibbs also went on to claim that, when courts have ruled that the government is unlawfully holding a detainee, the Obama administration has transferred the detainees “back to either their home country or third-party countries.”

Well, not really. As of today, 11 detainees who’ve won the right to be released by a federal court are still imprisoned at Guantanamo, as we note on our Gitmo Habeas Scoreboard, posted earlier today.  We’ll continue to update that as developments occur.

It’s worth noting that not only has the Obama administration not complied with court orders for release, but when lawyers for the Chinese Muslim Uighurs detained at Gitmo won an order to be released into the United States — since they can’t go home to China and the U.S. hasn’t been able to place them all in other countries — the Obama administration fought back hard. That case, Kiyemba v. Obama, is now pending before the U.S. Supreme Court.

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.

The court yesterday also put off deciding whether the U.S. government has to release photos of detainee abuse, as the American Civil Liberties Union is arguing in its Freedom of Information Act case against the Defense Department.  The court could decide whether to hear that case on Oct. 9.

SCOTUSblog has listed here all ten cases the court yesterday decided to review.

The first and better-known case involves whether the executive branch has the right to refuse to release photos of detainees abused by U.S. officials in overseas prisons simply because it fears the photos could spark violence against U.S. troops. Lawyers for detainees, such as American Civil Liberties Union attorney Amrit Singh, have insisted that the photographs “provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib,” and therefore their disclosure is “critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for authorizing or permitting such abuse.”

Meanwhile, Republicans and others have argued that the photographs’ release “will serve no public good, but will empower al-Qaeda propaganda operations, hurt our country’s image, and endanger our men and women in uniform,” as Sens. Lindsey Graham (R-S.C.) and Joseph Lieberman (I-Conn.) wrote to President Obama in May. Days later, Obama announced that he had changed his mind and decided not to release the photos, although he’d previously agreed to turn them over. Whether potential “harm” to the troops by unspecified persons abroad is sufficient to trump the public interest in access to information embodied in the Freedom of Information Act is the question the Supreme Court will consider, if it decides tomorrow to review the case.

The second big terror-related case questions whether a court can order the U.S. government to release Guantanamo detainees into the United States if the court has already determined that the government has no right to keep holding them and the government has not found anywhere else for them to go. The situation arises in the case of the Chinese Muslim Uighurs, all of whom have all been cleared for release. Although four were released to Bermuda earlier this year, 13 remain imprisoned at Guantanamo Bay because they cannot return to China, where they would likely face persecution. The United States has refused to accept them. The D.C. Circuit Court earlier this year ruled that the courts cannot order them released into the United States; only the president and the Department of Homeland Security have that power.

Perhaps in an effort to keep the issue away from the Supreme Court, the administration last week announced that the Pacific Island nation of Palau had agreed to take most of the remaining Uighur prisoners that have yet to be released. But it did not agree to take one of the 13 prisoners left, who is reportedly mentally ill. He and his brother, then, will remain at Guantanamo. If Palau had taken all of them, their case — and the Supreme Court’s chance to review the president’s authority — would have become moot.

What’s remarkable about both cases is that the Obama administration has taken essentially the same position as did the Bush administration before it. Tomorrow the high court will decide whether it will review and potentially reverse those positions, as it has in several other key rulings that dealt a blow to the Bush administration’s counterterrorism policies regarding executive power and the treatment of war-on-terror detainees.

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.

]]> http://washingtonindependent.com/58183/federal-court-clears-way-for-forced-transfer-of-gitmo-prisoners/feed 2 http://washingtonindependent.com/53068/judge-faces-major-challenge-to-government-authority-over-gitmo-detainee http://washingtonindependent.com/53068/judge-faces-major-challenge-to-government-authority-over-gitmo-detainee#comments Wed, 29 Jul 2009 16:22:53 +0000 Daphne Eviatar http://washingtonindependent.com/?p=53068 I’d bet that Judge Ellen Huvelle of the U.S. District Court in Washington, D.C., is really mad now.

After telling the government last week that it has “no evidence” supporting its case against Mohammed Jawad — the Afghan teenager arrested for allegedly throwing a hand grenade at U.S. soldiers, More...

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.

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.

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.