The April 2010 ordinance requires centers to post signs that disclose they do not provide or refer for abortions or comprehensive birth control, and was seen by council members as a way to curb “false advertising” by the typically faith-based, unregulated centers. Crisis pregnancy resource centers, or CPCs, have been criticized by reproductive rights advocates such as NARAL Pro-Choice Texas, which track the state program that allocates funds to the centers. The group argues CPCs are misleading and that their mission includes preventing abortions.

The Liberty Institute, a Plano-based conservative legal group, is representing the Austin Pregnancy Resource Center, the South Austin Pregnancy Resource Center, The Roman Catholic Diocese of Austin and Catholic Charities of Central Texas, contending the signs amount to “unlawful viewpoint discrimination” and force the centers to provide clients with “false and/or misleading message about services they do not provide.”

According to the suit, the requirement places a substantial “burden” on religious ministries and “unconstitutionally seeks to suppress unpopular ideas and information relating to pregnancy, and to manipulate the public debate by attempting to dissuade women from hearing pregnancy information from a religious perspective.”

The Chronicle points out that although the groups argue the ordinance fails to place a similar burden on other providers, state law does, in fact, require abortion providers to post notices, licensing numbers and information on how to reach the state with client complaints.

The unanimous vote was the second resolution of its type passed in the country. Baltimore issued a similar measure in 2009 but was deemed unconstitutional by a federal judge in Maryland.

Site visits have found that Austin LifeCare, a state-funded CPC and a plaintiff in the suit, conflates religious and educational materials and instructs volunteers with overt religious references, as the Texas Independent has reported. The state contractor that evaluates CPCs in Texas found at least one violation during more than half of their pre-announced site visits to subcontractors.

Pam Cobern, executive director of Austin LifeCare, told the Austin American-Statesman the ordinance “is designed to criminally punish the leadership and volunteer board members of pregnancy centers for no other reason than their moral opposition to abortion.”

The county said that through MERS, notes and mortgages are being “sold, assigned or transferred” without being recorded in county deed records. The defendants “misrepresented the true beneficial owner of notes and related mortgages filed by them in Dallas County, Texas, for the purpose of avoiding the recordation of subsequent transfer and payment of attendant filing fees.”

Watkins, 43, is seeking reimbursement for fees lost, punitive damages and a judgment of $10,000 a violation.

He asked the court to find that a violation of the Texas code occurred each time MERS was identified as a mortgagee or beneficiary under a deed of trust when it had no interest in the note secured by that deed. According to the complaint, MERS was the “grantee” in 157,319 records in Dallas as of Sept. 11.

The lawsuit also seeks a court order preventing the defendants from filing anything in deed records that identified MERS or anyone as a beneficiary who doesn’t have an interest in the secured note. The county said Bank of America “knew or should have known” the MERS system would cause improper filing.

The case in Kentucky was filed in April.

The Kentucky suit seeks compensatory and punitive damages and an injunction ordering defendants “to immediately cease the practice of nonrecording of assignments of mortgages.”

In Michigan, Ingham and Oakland county have taken two separate routes in their suits. Hertel has sued in Ingham County Circuit Court, while Miesner filed suit in federal court. Miesner’s suit is against only Fannie Mae and Freddie Mac, while Hertel’s suit includes Bank of America and Wells Fargo as defendants, as well as foreclosure firms Trott and Trott and Orlans.

These lawsuits are only the first in a series of suits being filed against lenders, banks and MERS (Mortgage Electronic Registration Service). Earlier this month, the feds filed suit against banks and others for the bundling and sales of toxic mortgage assets.

On an American Family Association radio spot today, Perry said, “Maybe people would want to lock me up. I think about those who talk about Christian faith as being intolerant. Isn’t it just the height of intolerance to say you can’t gather together in public and pray to our God?”

Tony Perkins of the Family Research Council told Perry during the broadcast that opponents are trying to prevent the rally from taking place because they “fear that God hears Christian prayers.”

“You don’t hear much about the Muslims. You don’t hear much when it’s the Buddhists or whatever. I think the reason is there are those who are very concerned that the prayers will be heard and that things will happen. And that’s what happens with Christians come together and pray,” said Perkins.

The Texas Independent reported yesterday that the suit from the atheist/agnostic group Freedom From Religion Foundation centers on the Aug. 6 event’s possible breach of separation of church and state, as well as Perry’s partnership with the controversial conservative Christian nonprofit AFA.

Meanwhile, Bryan Fischer of the AFA sounded off on his personal Twitter account and on a blog post targeting FFRF’s grammar.

In commentary titled “Freedom From Religion Foundation Needs Grammar Lesson,” Fischer debunks the constitutional principle of separation of church and state, thanks FFRF for the exposure and says the group is, “desperately afraid that someone, somewhere, is enjoying the free exercise of religion.”

You will look in vain for the phrase “separation of church and state” anywhere in the document created by the Founders. You could have found it in the constitution of the old Soviet Union, which ought to tell you something, but it’s just not in our founding document at all.

The folks at FFRF would be well-advised to take some remedial coursework in basic English grammar. This is for the simple reason that the Constitution nowhere guarantees to anyone anywhere the right to be free FROM religion. What it guarantees is freedom OF religion.

Quite simply, the Constitution prohibits the state from interfering with the church, but does not prohibit the church from influencing the state.

Fischer devoted a string of six Tweets to the FFRF lawsuit, calling FFRF an “enemy of both freedom and the Constitution,” and “positively un-American and unpatriotic to boot.”

As a religious nonprofit, the AFA must tread carefully along political boundaries during the prayer event as to not overstep their tax-exempt status, as the Texas Independent previously reported.

Lawyers for the State of Texas asked a federal judge to keep the law intact even if sections of the legislation were found to be unconstitutional, and defended the language’s clarity, the Houston Chronicle reported. Opponents leading the legal challenge argued the legislation is ideologically driven, intrusive and “falls outside the accepted medical standards for informed consent.”

The controversial bill, passed this session as “emergency legislation,” requires women seeking abortions to undergo a sonogram at least 24 hours before the procedure (with the waiting period reduced to two hours in areas more than 100 miles from an abortion provider). Doctors must also show and describe the images to the woman and play audio of the fetal heartbeat. Doctors unwilling to abide by the law could lose their right to practice medicine in Texas.

The New York-based Center for Reproductive Rights requested an injunction to the law in June, as the Texas Independent previously reported. CRR alleges the law violates the First Amendment rights of both the doctor and the patient by “forcing physicians to deliver politically-motivated communications to women, regardless of their wishes.”

BeBe Anderson, senior counsel to the pro-abortion rights group told the Independent the bill “hijacks the doctor-patient relationship,” and described it as part of an anti-choice agenda.

“You expect your doctor to act in your best interest, but this bill turns the ethics around as physicians are forced to feed images, sounds and information that the state has decided a woman needs to know,” she said.

Author of the bill, Sen. Dan Patrick (R-Houston) was unsurprised by the legal challenge, the Austin American-Statesman wrote.

“Pro-abortion advocates have historically used activist courts to impose their agenda,” he said. “I am proud to have passed this important bill that ensures women have as much information available to them as possible before making this life-altering decision.”

U.S. District Judge Sam Sparks gave both parties 15 days to deliver supplemental evidence. The federal judge “appeared uncomfortable” with language in the bill that advised doctors to address sonogram explanations in a way that would be “understandable to a lay person,” the Chronicle reported. Sparks said it “seemed obvious” that the bill’s intention was limit abortions.

A decision is expected from Sparks before the law goes into effect September 1.

Tea Party demonstrators on Capitol Hill on Sunday (Photo by David Weigel)

The moment that the House of Representatives passed the health care reform bill, 10 Republican state attorneys general were ready for it. Early Monday morning, Virginia Attorney General Ken Cuccinelli announced plans to sue on the grounds that the federal government was abusing its “power to regulate interstate commerce” by passing a personal mandate for health care. Florida Attorney General Bill McCollum agreed, calling the mandate an attempt “to fine or tax someone just for living.” On the surface, conservative opposition to universal health care had dusted itself off and charged right back into the fight.

[GOP1]But beneath the headlines, press releases, petitions and donation drives that followed the historic vote, lawyers and legislators are less confident that health care reform can be repealed — much less that it can be repealed quickly. In Idaho and Tennessee, two states where state opt-outs of the federal mandate have passed (in Idaho, the legislation has even been signed by the governor), the people who will decide whether to challenge the bill are treading more carefully than the rhetoric suggests.

“Everybody needs to take a deep breath,” said Bob Cooper, a spokesman for Idaho Attorney General Lawrence Wasden. “This bill is a few thousand pages long. We need some time to review it. We need time to see whether or not it impinges on rights, how so, and whether we can bring a case that has merit. There are serious sanctions for attorneys who file frivolous lawsuits.”

Mae Beavers, a Republican state senator in Tennessee, was also cautious about how to proceed with a health care challenge. Her Tennessee Health Freedom Act sailed through the upper house, becoming a model for pre-emptive opt-out bills in other states. And while she expects a companion bill to move through the lower house, the possibility of an immediate challenge to the reform bill seemed remote.

“Our legislation says that whenever the national health care would start, our citizens will have a choice,” said Beavers. “I assume it would take a while to put together.”

The problem with a challenge, say conservatives, is that the mandate for health care — an idea with origins on the right that has become anathema ever since its implementation in Massachusetts — will not take effect until 2014. Whether attorneys general can successfully challenge the mandate until then is unclear. Thomas Woods, a conservative scholar who is putting the finishing touches on a Regnery-published book about nullification, suggested that challenges to the mandate will be fruitless, working their way through a legal system that has no great record of repealing major legislation.

“If states file legal challenges,” asked Woods, “who do they file them with? The federal courts! I wouldn’t even go to the legal level. From my point of view nullification is a way to announce to the government that your state is ready to engage in civil disobedience. It boils down to this: We are confident that obeying the will of the people means not enforcing this mandate. So what are you going to do now?”

Michael Boldin, the president of the Tenth Amendment Center — founded in 2009 to organize for such fights on behalf of state sovereignty — told TWI that legal challenges of any kind were the “first step” to opposing health care reform. But he envisioned the resistance to the mandate taking a more low-key form: Simple, persistent disobedience.

“If I were to reduce this whole thing down to one word,” said Boldin, “I’d say: Marijuana. Look at medical marijuana in California. California passed a medical marijuana law and the federal government said it couldn’t do so, under the supremacy clause. But people continued to disobey laws and it cost more money to enforce them then to ignore them.”

As difficult as a repeal of health care reform would be, as realistic as the disobedience plan sounds, neither approach to the issue satisfies the high-level legal groups, pundits and politicians who have campaigned against reform. Prior to the health care vote, on the Friday episode of his Fox News show, Glenn Beck showed Sarah Palin a map of states with opt-out bills in the works — many of them dominated by Democrats, where the legislation has no chance of success.

“These are all the states that are saying, ‘No health care for us. Get your health care bill away from us,’” said Beck. “What do you think of this solution as a former governor?”

“Let’s be thankful for… those governors who want to lead their citizens to have their voice heard with this ObamaCare scheme coming down the pike,” said Palin. “That’s abhorrent. It’s unacceptable. And legal tools must be used.”

Beck and Palin were only slightly ahead of the curve — the final 72 hours of the debate saw surge in the number of Republican politicians promising constituents that health care reform could be stopped at the courts. At Saturday’s “Code Red” rally in front of the Capitol, Rep. Zach Wamp (R-Tenn.), a candidate for governor of Tennessee, promised activists he’d meet federal regulators “at the state line” if elected. On Sunday, Rep. Pete Hoekstra (R-Mich.), a candidate for governor of Michigan, raised the possibility of blocking reform “at the ballot box” or “in the courts.” On Monday, Florida U.S. Senate candidate Marco Rubio endorsed Attorney General McCollum’s potential lawsuit — on a mid-afternoon Fox News appearance, former Gov. Jeb Bush (R-Fla.) praised Rubio and chided his rival, Gov. Charlie Crist (R-Fla.), for not backing the suit.

Conservative legal groups have taken much the same tack. Last week, the Landmark Legal Foundation — nominally run by conservative author and radio host Mark Levin — prepared a draft legal brief challenging any health care bill that the House “deemed passed” without a vote. Because the House held a full vote on the bill, the foundation scrapped that brief and, according to vice president Eric Christiansen, moved on to assisting attorneys general with whatever they decided to do.

“We want to see this thing defeated,” said Christiansen. “However we can leverage our resources and make the biggest impact, that’s what we’ll do.”

For the first time in the health care debate, however, opponents of the reform package face a complicated, uncertain struggle at odds with the promises and podium-pounding that marked the year of opposition.

“I don’t know what people are telling their donors,” said Curt Levey, executive director of the conservative Committee for Justice, “but litigation is always lengthy especially where, as here, the final answer will likely come from the Supreme Court… Courts will typically move things along faster when a case is as important as this one, but it’s unlikely that we would get a final decision from the Supreme Court before the 2011-2012 term.”

Levey’s take was in line with that of Idaho’s Cooper, hard at work in one of the AG offices that’s viewed to have the best chance of challenging the mandate.

“We’re not trying,” said Cooper, “to win a race to the courthouse.”

That’s the question a subcommittee of the House Judiciary Committee examined Wednesday. Echoing a recent parallel hearing in the Senate, lawmakers and witnesses considered whether the Supreme Court’s recent rulings in two key cases undermined the ability of victims to have their day in court, or protected business and government from costly and intrusive lawsuits.

As in the Senate, House lawmakers appear divided along party lines. Democrats and their witnesses say that the Supreme Court’s recent decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal have gutted the civil rights and antitrust laws and imposed an unfair and often insurmountable burden that will doom many valid claims. Republicans and their witnesses, meanwhile, say the court did the right thing to help reduce frivolous lawsuits that destroy small businesses and drag busy government officials into court unnecessarily.

Rep. Jerrold Nadler (D-N.Y.), who testified at Wednesday’s hearing, has introduced legislation to effectively turn back the clock to before the Supreme Court’s rulings by restoring the previous standard for filing claims.That legislation, HR 4115, the Open Access to Courts Act, was the focus of the hearing.

The key question is, should a victim filing a lawsuit be required to produce evidence of specific credible facts supporting her claims in order to be allowed to proceed with the case? In the past, courts have required only “a short and plain statement” of the claims. The facts are adduced in the course of the lawsuit through a legal process known as “discovery.”

For those who view most lawsuits as frivolous, the Supreme Court’s new standard is a welcome change. Rep. Bob Goodlatte (R-Va.) argued Wednesday that the high court’s recent requirement “seems to me to be very reasonable.” The proposed legislation, on the other hand, he argued, “is an economic stimulus package for trial lawyers.”

The Democrats’ witnesses, such as Eric Schnapper, law professor at University of Washington and a former attorney for the NAACP Legal Defense Fund, countered that the two recent Supreme Court cases “brought about sweeping changes in the lower courts, all for the worse.” In discrimination cases, now, so long as “discriminatory officials do a good job covering their tracks, under Iqbal and Twombly they can cut off any legal challenge before discovery is available to unearth their records or force them to answer questions under oath,” he said. The new standard “requires proof of a smoking gun,” which could doom many meritorious cases at the outset, he testified.

Gregory Katsas, a Justice Department official in the Bush administration who defended former Attorney General John Ashcroft and FBI Director Robert Mueller in the Iqbal case and now defends corporations at a private law firm, warned that the proposed legislation would “open the floodgates” for “fishing expeditions – intrusive and expensive discovery into implausible and insubstantial claims.” That would “impose massive costs on defendants who have engaged in no wrongdoing.”

When it comes to cases against government officials, such as Iqbal — which alleged that senior Bush administration officials discriminated against Muslims by improperly detaining them after the Sept. 11 terrorist attacks — “such discovery would vitiate an important component of the officials’ qualified immunity” even where the claims are against individual government officials “for actions undertaken to prosecute wars abroad or to respond to national?security emergencies at home,” said Katsas. “Such a result,” he added, “would be paralyzing if not deadly.”

Both sides came armed with statistics to support their case that the recent Supreme Court decisions were either a “sea change” in the law that decimated the ability of civil rights claimants to pursue their cases, or were merely a logical interpretation of existing law and had little impact on the actual outcome of cases in court.

As several of the expert witnesses pointed out, however, the statistics don’t really tell you all that much. Even if cases are being filed or dismissed at about the same rate as before, there’s no telling how many cases haven’t been filed because the new standard would doom them, or how many defense lawyers are relying on the new standards to ask courts to dismiss cases that they wouldn’t have dared tried to get dismissed so early in the game before.

Guantanamo detainees line up for morning prayers. (The Toronto Star/ZUMApress.com)

How did prison guards at Guantanamo Bay overlook three men hanging from nooses in their cells for more than two hours, in what was supposed to be a super-high security prison housing “the worst of the worst” terrorists in the world?

That’s one of the central questions addressed by a new report released on Monday from Seton Hall University Law School about the deaths of three detainees at Guantanamo Bay on the night of June 10, 2006. The report finds that government officials, after failing to prevent the prisoners’ deaths, then sought to deflect responsibility by claiming that the men were engaging in “asymmetrical warfare” against the United States, tried to hide what happened from the media and detainees’ lawyers, and neglected to conduct a thorough and credible investigation or hold any prison guards responsible.

[Law1]These latest revelations about the deaths of three men at Guantanamo are consistent with a broader trend in how the U.S. government has tried to conceal the circumstances of deaths in U.S. custody and shield U.S. officials from liability, by seeking to dismiss all lawsuits brought against government officials by family members of deceased detainees.

TWI recently reported that the Obama administration is fighting to squelch a lawsuit brought by the families of two of the prisoners who are the subject of the Seton Hall report, claiming that a law passed by Congress protects U.S. officials from liability for any mistreatment of detainees who were declared “enemy combatants” and held in U.S. custody. The government also argues — most recently in a legal brief filed last Friday — that the relatives of the men are not entitled to sue because, among other things, the court should not interfere in foreign policy and national security matters, and a remedy would “have a detrimental impact on the effectiveness of the military.” The government also argues that the officials sued are immune from suit because the dead prisoners did not have any constitutional rights to better care or supervision, and none of the 24 military and former military officials sued personally participated in denying them any constitutional rights. The government argues that neither the Constitution’s Fifth Amendment right to Due Process nor the Eighth Amendment’s prohibition on cruel and unusual punishment apply to Guantanamo detainees.

As Salon blogger and Constitutional lawyer Glenn Greenwald wrote on Monday: “All of this is depressingly consistent with multiple other cases in which the Obama DOJ is attempting aggressively to shield even the most illegal and allegedly discontinued Bush programs from judicial review.” In each case, the administration has argued, as aggressively as the Bush administration ever did, that “federal courts have no right to adjudicate claims that the Government violated the Constitution and the law,” writes Greenwald.

TWI has pointed out and Harper’s contributing editor and human rights lawyer Scott Horton wrote over the weekend that the government is even making these claims to defend John Yoo, and to argue that no government lawyers ought to be held responsible for advising the government to engage in clearly illegal conduct, even if the consequences were, forseeably, that someone would be tortured or even killed.

In their legal complaint, the fathers of two of the young men, Yasser Al-Zahrani and Salah Al-Salami, both in their 20s, claim their sons were beaten, sleep-deprived, isolated, held in freezing cold or excruciatingly hot temperatures, humiliated, prevented from practicing their religion and denied necessary medication. The fathers, represented by the Center for Constitutional Rights, claim the young men were obviously suffering from deteriorating mental health and growing despair. Deemed “enemy combatants,” they’d spent four years locked up at the Guantanamo prison camp without charge, without seeing the evidence against them, and without ever even meeting with a lawyer who could press their case in a court. Both had engaged in a prolonged hunger strike with other prisoners, and, their fathers say, clearly presented a high risk of suicide.

Yet somehow, as the Seton Hall report points out, the three men were left unsupervised in their cells for long enough that they were able to tear up their sheets and clothing and braid them into a noose; make mannequins of themselves to fool guards into believing they were asleep in their cells; hang sheets to block the guards’ view in violation of prison rules; stuff rags down their own throats; tie their own feet and hands together; hang the noose from the cell wall or ceiling; climb up on to the sink in the cell, put the noose around their necks and release their weight so as to die by self-strangulation; and hang dead for at least two hours in the cell, without attracting any attention from the prison guards.

According to the report, five guards were responsible for 24-hour supervision of 28 detainees in the constantly-lit prison cells, which were also monitored by video cameras. Although the guards were initially suspected of giving false statements and read their Miranda rights, they were also ordered not to write out sworn statements, although that’s required by the military’s standard operating procedures. Ultimately, no one was held responsible for any wrongdoing, the report concludes.
Mark Denbeaux, a law professor at Seton Hall and Director of the school’s Center for Policy & Research, which conducted the study of the military’s investigation into the three deaths, said in a statement that the investigation shows “guards not on duty, detainees hanging dead in their cells for hours and guards leaving their posts to eat the detainees’ leftover food.”

Denbeaux also called the government’s investigation “a cover up,” adding that “given the gross inadequacy of the investigation the more compelling questions are: Who knew of the cover up? Who approved of the cover up, and why? The government’s investigation is slipshod, and its conclusion leaves the most important questions about this tragedy unanswered.”

A Pentagon spokesman reached late Monday said that defense department officials had not yet reviewed the Seton Hall report and had no comment.

In light of the Obama administration’s consistent position that government officials cannot be held legally liable for any mistreatment of Guantanamo detainees, however, the answers to those remaining questions may never be answered.

Sen. Sheldon Whitehouse (WDCpix)

Last year, an Arizona housing developer known for building affordable homes for Hispanics filed a complaint against the City of Yuma, which denied his application to build homes for low to moderate income families in a predominately white high-income neighborhood. The developer sued for discrimination under the Fair Housing Act, charging that the decision was racially motivated. But the federal court dismissed the case before the developer could even gather evidence, ruling that the discrimination the developer alleged was not “plausible.”

[Law]In the past, merely stating the allegations would have been enough to allow the developer to at least begin gathering information to try to prove his case. But two recent Supreme Court decisions have made bringing discrimination cases far more difficult by demanding not only that the claim clearly meet the requirements of the law, but also that a judge find it “plausible” before allowing the plaintiff to begin collecting evidence. The consequence is that many people who in the past might have won their cases on the merits now won’t even get past the entrance gate.

That’s either a sea change in the way the courts handle lawsuits and particularly civil rights claims, as several witnesses and senators argued on Wednesday at a Senate Judiciary Committee hearing on the subject, or it’s merely a clarification of the longstanding procedural requirements, as some Republicans at the hearing argued.

The bank has denied all the charges, and has said it will strongly fight the lawsuits.

There’s a lot for the bank to answer to. Here’s a bit more from the suit by Illinois Attorney General Lisa Madigan, regarding the bank’s marketing tactics:

As part of Wells Fargo Home Mortgage’s marketing plan, Wells Fargo Home Mortgage utilized a computer function that purportedly permitted employees to customize Wells Fargo marketing materials to target African Americans by choosing “African American” in a pull down menu of “language” options.

If that’s true, it’s certainly a creative use of language options by the Wells’ marketing people.

And the end result of all these efforts, according to Madigan?

The lawsuit also follows a recent Chicago Reporter analysis of mortgage data submitted by Wells Fargo to the federal government. That study found that, in 2007, Wells Fargo sold high-cost, subprime loans more often to its highest-earning African-American borrowers in Chicago than to its lowest-earning white borrowers. According to the study, in 2007, about 34 percent of African Americans earning $120,000 or more received high cost mortgages from Wells Fargo in the Chicago metro area, while less than 22 percent of white borrowers earning less than $40,000 received high-cost mortgages from the lender.

So … a black borrower making more than $100,000 could be more likely than a white borrower earning, say, $35,000 to get a subprime loan? No wonder the lawsuits against Wells are flying.

The point about the suit in Illinois, and a similar suit filed by the city of Baltimore against Wells, is that all these subprime loans took a huge toll on minority neighborhoods, and devastated the cities themselves. These are dramatic, even unprecedented charges — that a major U.S. lender, a recipient of $25 billion in government  bailout money, caused lasting damage to some major American cities by deliberately targeting minority neighborhoods for risky high-cost loans. The cities are suing Wells to recover money to fix the mess that remains in neighborhoods wrecked by foreclosures.

Now Smiley has distanced himself from Wells, and teaming up with the bank for “Wealth Building” seminars won’t be on his agenda again.

But what about the rest of it? If the bank’s lending practices were fair and beyond reproach, as the bank maintains, then what happened? Why are black and Hispanic communities in some cities crumbling under the weight of so many subprime foreclosures?

Smiley may have left the stage. But that still hasn’t answered all the questions regarding Wells Fargo, subprime loans and the broken neighborhoods left behind.

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.”