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 federal law makes it illegal to make and sell commercially “any visual or auditory depiction” of the killing or serious abuse of a living animal so long as that conduct is illegal.

Deputy U.S. Solicitor General Neal Katyal, appealing to the Court to reinstate the law, which was struck down by the Third Circuit Court of Appeals, explained that Congress intended to shut down “a robust market” for “crush videos” — images of small animals being stomped to death.  The law, said Katyal, was a “narrowly targeted restriction.”

But Denniston reports that most of the Justices did not appear to be buying his argument. They tossed out a series of hypotheticals asking what would be banned under the law — from videos of bull-fighting to the making of foie gras — to suggest that Congress overreached on this one. Only Justice Samuel Alito, writes Denniston, seemed prepared to support the law as it was written.

Ginsburg was hospitalized yesterday after “feeling ill in her chambers earlier in the day,” the Court announced.  An hour after receiving an injection in response to an iron deficiency, “she felt faint, developed light headedness and fatigue,” the statement added.

Ginsburg, 76, underwent surgery in February for pancreatic cancer. SCOTUSblog has the full report.

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.

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/55408/supreme-court-orders-a-new-hearing-for-death-row-inmate-troy-davis http://washingtonindependent.com/55408/supreme-court-orders-a-new-hearing-for-death-row-inmate-troy-davis#comments Tue, 18 Aug 2009 14:51:24 +0000 Daphne Eviatar http://washingtonindependent.com/?p=55408 In a highly unusual decision, a majority of Supreme Court justices yesterday ordered that a federal judge in Georgia must hear new evidence that lawyers for Troy Davis have been saying for years will prove his innocence.

Davis, as I’ve explained before, has been on death More...

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.

The Texas local governments had argued that Michael Chertoff, Napolitano’s predecessor, improperly waived dozens of federal laws that could have blocked or slowed construction of the fence.

This is the second time the Supreme Court has refused to get involved in a legal challenge to the Homeland Security secretary’s authority to speed construction of the fencing. This time, SCOTUSblog reports, “the Justices examined the new case at eight separate private meetings, then still came to the conclusion that it would not rule on it.”

The high court offered no explanation for declining to review the case, which is typical.

Congress authorized (pdf) the fence in an effort to slow illegal immigration, and authorized Chertoff to waive the federal laws in 2005.

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.

Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case.  So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.

“Given that record,” writes Goldstein, “it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.”