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D.C. Circuit Court Rules Courts Have No Power Over Gitmo Prisoners — Again

Yesterday, I wrote about the 17 Chinese Uighurs’ petition to the Supreme Court challenging the decision of the U.S. Court of Appeals for the D.C. Circuit ruling that the federal courts have no authority to release the prisoners, even if they’ve been wrongfully imprisoned for years.

Well, yesterday the same D.C. Circuit Court issued another decision that’s essentially the flip side of the same coin: the courts don’t have the power to keep the men at Gitmo, or to prevent their transfer to another country, either.

The situation arose because nine of the 17 Uighurs held at the U.S. detention facility at Guantanamo Bay, in addition to seeking habeas corpus relief that would release them, want assurances that they won’t be sent to a country that might torture them. Given that they are Muslim dissidents, that’s not an unreasonable concern. So, as with many of the Guantanamo cases, their lawyers have asked the district court to order the government to provide 30 days’ notice before transferring the detainees out of Guantanamo to another country.

For years, that wasn’t a problem. But ever since the court of appeals ruled that it doesn’t have the power to free the prisoners, the government started arguing — and the lower courts started agreeing — that maybe they don’t have the power to require notice of a transfer, either. After all, if the courts can’t control what the government does with the men, 30 days’ notice won’t accomplish anything.

Yesterday’s decision put another nail in the coffin of Gitmo prisoners’ habeas rights. Sure, the Supreme Court ruled in the case of Boumediene v. Bush that the government can’t eliminate the right of habeas corpus, but apparently that right didn’t actually mean anything.

“Ultimately, the question is whether the Supreme Court in Boumediene recognized a right that can’t be enforced,” says David Remes, a lawyer for 15 Yemeni detainees imprisoned at Guantanamo, who has won similar 30-day notice orders for some of his clients. “That can’t be what the court contemplated.”

That would make Boumediene a pretty hollow victory, Remes notes.

Although the government may promise that it’s not going to send prisoners to a country where they’ll be imprisoned again without cause (and without habeas rights) or tortured — which is, after all, against international law — the court is now saying that we’re just going to have to take the government’s word for it.

Given the previous administration’s record for respecting international law, and the fact that the Obama administration has not relinquished its right to indefinite detention of “enemy combatants” — or whatever it’s calling them now – that’s not particularly comforting.

As Judge Thomas Griffith, a Bush appointee, wrote yesterday in a powerful dissent in the D.C. Circuit case: “Critical to ensuring the accuracy of the government’s representations is an opportunity for the detainees to challenge their veracity.”

If the Supreme Court were to reverse the decision in the Kiyemba case I wrote about yesterday — 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 — it would presumably change the outcome of the Uighurs’ case, too. Unfortunately, it could be many months before that would happen, and in the meantime, the executive branch appears to have complete control over the fate of the Gitmo detainees — a fact which seems contrary to the whole purpose of the writ of habeas corpus itself.

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