Anniversary of Boumediene Decision Marked By U.S. Refusal to Accept Cleared Detainees

Lyle Denniston at SCOTUSblog reminds us that today is the one-year anniversary of the Supreme Court’s landmark decision, Boumediene v. Bush, which confirmed that Guantanamo Bay detainees have the right to challenge their detentions in U.S. courts. Coincidentally, today the Washington Post also reported on its front page that the Obama administration has given up on resettling even innocent Guantanamo detainees, cleared either by the courts or by the Defense Department, here in the United States.

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.