First a detainee has to win a habeas case. (Check their track record here.) Easy, right? If the government decides not to contest the decision, then the detainee — who, recall, the Obama administration is saying is too dangerous to responsibly release — walks. (More on that in a second.) We haven’t been faced with this situation yet. But if the administration appeals, then the detainee has to win. And on up to the Supreme Court, if the government really wants to contest the issue. Joseph Margulies, a professor of law at Northwestern University who’s focused extensively on Guantanamo, estimates that this process could take at least 18 months to exhaust itself at the earliest. Possibly years. (And even then, it wouldn’t be certain that the Supreme Court would use a habeas appeal as an opportunity to decide the first-order question: whether the Obama administration has the constitutional power to hold a member of al-Qaeda or the Taliban in indefinite detention without charge.)

The real inflection point will come “when the government loses” a habeas case, said Margulies. “Are they going to let [a detainee] go?” If the administration concedes the loss, then there’s no crisis. But if it decides it can’t let someone go, and runs out of appeals, then the administration’s most likely option is to get a get a preventive detention bill from Congress, a civil liberties Rubicon. The Obama administration briefly considered that option this summer and balked. But if the administration loses a habeas case; seeks to detain someone indefinitely even so; and doesn’t have explicit preventive detention powers from Congress, then it most likely is just simply breaking the law.

“I heard about this listening to an NPR story this morning,” said Sabin Willett, a lawyer for the Uighurs at Guantanamo Bay, describing his big-picture reaction to the Guantanamo task force’s conclusions. “The intro to that story described them as ‘the terror suspects at Guantanamo.’” Willett pointed out that his clients have been cleared by Defense Department tribunals and exonerated by the courts. They are not terrorists, and no one believes they’re terrorists. “This proves the power of the press — those two words ‘terror suspects.’ How do I fight that?”

From there, Willett continued, it’s natural to start wondering if those “terror suspects” really are too dangerous to release. “I keep saying, give me a name. Who’s too dangerous? Give me a reason. Then start asking what other regimes had people they considered ‘too dangerous to release.’ You’re going to find yourself on a list of countries you’re not too proud to be on.”

A postscript: Dear lawyers. I am not one of you. This is my best attempt to understand what you guys do. I am happy to correct errors here, but please read this post in that spirit.

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.

It’s “[a]nother lie,” Willett wrote, a partner at the law firm of Bingham McCutcheon. “Just a flat-out falsehood, based on air. It never happened.”

Since news broke that the Justice Department was considering the release of the Uighurs, Willet writes, “the most astonishing stories began to circulate” about their alleged connections to terrorism, even though courts had specifically rejected those claims, the Bush Justice Department had specifically told a federal judge that they had no evidence that the men were dangerous, and the military in 2004 and 2005 had approved their release to civilian populations.

The truth is that five Uighur companions from Afghanistan have lived peacefully among civilian populations in the capitals of Albania and Sweden for three years now.

But the problem extends beyond the Uighurs.

There are about 60 men at Gitmo, like the Uighurs, who are neither enemies nor criminals in anyone’s estimation. No law justifies their imprisonment. They have been held in a military prison for longer than any real enemy of the country was ever held before. So what are we going to do about them?

We could free them, Willet suggests, because “in this country we just don’t capture and imprison people without a legal reason.” Or, “the hell with them. They stay there forever. And I really do mean forever. … We don’t seriously think that a hysterical smear campaign about jihadism, Sharia law, and ETIM [the East Turkestan Islamic Movement, another terrorist group Republicans have claimed they belong to] is going to persuade some other country that they are just peachy for its civilian populations, do we?” He continues:

If that’s our view, we need to be honest with ourselves about our American values. We are fine with holding people in a prison forever, without any legal basis. [...]

We talk a lot in this country about freedom. But talk is cheap. If we follow the House’s actions [the GOP bill titled "The Keep Terrorists Out of America Act"], then we may care about security, but we don’t give a damn about freedom.

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.”