The Washington Independent » lyle denniston

Supreme Court Could Confront Constitutionality of Spending Bill

Daphne Eviatar — Thu, 29 Oct 2009 20:27:09 +0000

Lyle Denniston at SCOTUSblog points out that the Supreme Court’s decision to hear the case of 17 Chinese Muslim Uighur detainees who a judge ordered released into the United States will likely also force the Justices to consider the constitutionality of two bills President Obama signed yesterday.

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.

Today’s SCOTUS Argument Doesn’t Bode Well for Campaign Finance Reform

Daphne Eviatar — Wed, 09 Sep 2009 16:17:59 +0000

Here’s Scotusblog’s Lyle Denniston’s take on this morning’s argument in the campaign finance case Citizens United v. FEC:

If supporters of federal curbs on political campaign spending by corporations were hoping that Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., would be hesitant to strike down such restrictions, they could take no comfort from the Supreme Court’s 93-minute hearing Wednesday on that historic question. Despite the best efforts of four other Justices to argue for restraint, the strongest impression was that they had not convinced the two members of the Court thought to be still open to an exercise in modesty. At least the immediate prospect was for a sweeping declaration of independence in politics for companies and advocacy groups formed as corporations.

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.

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.