Obama Signs Potentially Unconstitutional Bill Prohibiting Release of Gitmo Prisoners in U.S.

As expected, yesterday President Obama signed a supplemental appropriations bill that prohibits the release of Guantanamo detainees into the United States, and

Elisa Mueller

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Last updated: Jul 31, 2020 | Jun 25, 2009

As expected, yesterday President Obama signed a supplemental appropriations bill that prohibits the release of Guantanamo detainees into the United States, and restricts the president’s ability to release them to other countries without Congressional approval.

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.