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.

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.

“It’s good to be humanitarian and all, but still these people … to me are scary,” remarks one Palauan.

The government of Bermuda, where four of the 17 Uighur detainees are now residing, is receiving a mixed response for its decision to take in the detainees. Bermuda, an overseas territory of the United Kingdom, has been criticized by the United Kingdom for unilaterally deciding to accept the detainees without regard for Britain’s concerns on the matter. In a statement issued by the Foreign and Commonwealth Office, the Bermudan government was chided for potentially overstepping its bounds:

We have underlined to the Bermuda Government that it should have consulted the UK on whether this falls within their competence or is a foreign affairs or security issue for which the Bermuda Government do not have delegated responsibility.

The Bermuda Sun reports that although that country’s Muslim community welcomes the detainees and the Human Rights Commission applauds the decision to host them, one member of Parliament is expressing outrage that he claims is shared by the overwhelming sentiment of the Bermudan people.

But China, the original home of the Uighur detainees, only has a bone to pick with the United States.  According to The New York Times, Chinese Foreign Ministry spokesman Qin Gang claims that America is ignoring international law by refusing to return the detainees to their home country. The U.S. government declined to return the Uighurs to China out of fear they would face persecution and torture.

Despite the controversy, one relocated Uighur has thanked the Bermudan government for “let[ting] freedom ring.”

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.

The Associated Press reports that “two U.S. officials, who spoke on condition of anonymity, said the U.S. was prepared to give Palau up to $200 million in development, budget support and other assistance in return for accepting the Uighurs and as part of a mutual defense and cooperation treaty that is due to be renegotiated this year.”

In an interview with the BBC World Service this morning, Palau President Johnson Toribiong insisted that the only money he’d discussed with the U.S. government was “small support money” to aid in the Uighurs’ resettlement.

For a tiny island of less than 30,000 inhabitants, $200 million would surely be some helpful support. But Toribiong said that was not the motivation: “It’s an act of support for the United States in a request to release these people,” he told the BBC.

In a statement, Toribiong said his tiny country is “honoured and proud” to resettle the detainees, who have been found not to be “enemy combatants.”

Daniel Fried, the State Department’s Guantanamo troubleshooter, worked out a deal with Palau earlier today, according to The New York Times, to take an unspecified but substantial number of the 17 Uighurs at Guantanamo Bay, making other a-la-carte resettlement efforts easier:

One administration official said that if Palau agreed to take “a large chunk” of the 17, it would be easier to find homes for the rest, either in Australia, Germany or the United States. Australia and Germany already have Uighur populations, making those countries obvious candidates.

Australia recently agreed to review a request to accept some Uighurs, after twice rejecting from the United States. Germany has been reluctant to accept any detainees unless the United States takes some, too.

So there’s a silver lining for the demagogues: maybe one Uighur whom the Bush administration didn’t consider an enemy combatant will end up in Virginia. Keep some cash on hand for a quick ad buy.

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