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Gitmo Special Envoy Highlights Obama’s Prisoner Problem

Reports that the Obama administration will appoint the assistant secretary of state for European affairs under the Bush administration, Daniel Fried, as a special envoy on the Guantanamo Bay prison suggest the Obama administration is at least trying to deal with the question of what to do with many of the detainees who are not dangerous but can’t go home. But while the news is being portrayed in the mainstream media as a sign of President Obama’s serious approach to the problem, lawyers for some of the detainees say the administration’s handling of their client’s habeas corpus cases actually suggests a disturbing reluctance to break from past policies.

The kind of prisoners Fried (who DailyKos notes defended the Bush rendition policy to European allies) will probably be trying to resettle are those like the 17 Uighurs — the Chinese Muslims who’ve been cleared for release but can’t return home to China, where they’d likely be persecuted. But they aren’t being allowed into the United States, either. This is despite a federal judge’s recent order that the Uighurs be released into the United States, because the U.S. government had offered no evidence to justify their continued detentions.

But a federal appeals court reversed that ruling, finding that the federal courts don’t have the authority to release a prisoner into the United States — only the president and the Department of Homeland Security can do that. (The reasoning is that now they’re illegal aliens without immigration clearance.) So, why isn’t Obama letting them go?

The fact that congressional Republicans from Virginia, North Carolina, and Florida have introduced legislation to prevent detainees from even being transferred to prisons in their states offers some clue.

Back when President Bush was in charge, the Uighurs had become a global embarrassment and a cause celebre — even prominent conservatives were pleading with the Bush administration to release them into the United States, where Uighur families in the Washington, D.C. area were willing to take them in.

Now that the Obama administration has pledged to close down Gitmo and move the prisoners to appropriate places, he’s still not letting the Uighurs — or anyone else for that matter — into the United States. The Obama Justice Department is now even trying to stop their habeas corpus petitions from moving forward.

In the administration’s most recent move earlier this week, it asked the federal district court handling Guantanamo prisoner cases to halt all the habeas corpus cases of prisoners cleared for release, telling the judge it’s really up to the president, not the court, to decide what to do with them. After all, that recent appeals court decision said the judge doesn’t have the power to order them released anyway.

Guantanamo detainee defense lawyer David Remes is dismayed by this latest move in his clients’ cases.

“We come full circle,” said Remes, executive director of Appeal for Justice, a nonprofit legal organization focusing on the detainee cases, in an email yesterday. “First, the government argued that the courts have no jurisdiction to entertain the prisoners’ habeas cases,” he said, referring to the Bush administration’s early arguments about Guantanamo prisoners. “The Supreme Court shot that argument down in Rasul,” he said, referring to the Supreme Court case, Rasul v. Bush.

“Then, the government argued that even if the courts have jurisdiction, the prisoners have no rights. The Court shot that argument down in Boumediene,” another landmark Supreme Court case. “Now, the Obama DOJ, like the Bush DOJ before it, is arguing that even if the court has jurisdiction, and the prisoner has rights, there’s nothing a court can do to enforce those rights, because the president alone controls whether a prisoner shall be released. Of course, a right without a remedy is not a right.”

For some 60 Gitmo prisoners who’ve been cleared for release, all this just means they have to wait longer before they’ll be let go — and it’s still not clear to where.

Yesterday, Attorney General Eric Holder also named two longtime government lawyers to direct task forces to analyze detention issues: J. Douglas Wilson, a senior federal prosecutor in California, and Brad Wiegmann, a senior Justice Department national security lawyer. The fact that Wiegmann was a national security lawyer in the Bush administration might not bode well for those looking for big policy changes.

This post has been updated.

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