Lawyers for 13 Guantanamo Bay prisoners learned Monday that the Supreme Court has put off any action on their case until its next Term.  After noticing that the Court had issued no order on the case of Kiyemba, et al., v. Obama, et al. (08-1234), the attorneys checked with Court aides and were told there would be no decision “until October at the earliest.” That apparently means that the Court will not consider granting or denying the case until it next assembles for a private Conference on Sept.  29.

Because the Court took no formal action on Kiyemba Monday, there was no explanation.  It is possible to speculate on the reasons.

Among them could be that the Court did not want to be seen to be interfering with diplomatic efforts to arrange the re-settlement of the 13 men in the case — Chinese Muslims who are members of the Uighur sect.  The U.S. Solicitor General had told the Court that four of 17 Uighurs originally involved in the case had been released, and that diplomatic efforts would go on to try to place the other 13.

Another possible reason was that the Court was unwilling, while the new Obama Administration was sorting out its overall detention policy, to engage in a confrontation over presidential or congressional war powers of the kind that had led to four earlier rulings limiting detention authority.  The prospect that the remaining 13 might yet be placed in another country perhaps made it seem that the case simply would become moot in a matter of weeks.

Still another factor in the postponement decision could have been Congress’ passage this month of new legislation that severely restricts the President’s power to order the release of any detainees at Guantanamo, to live in the U.S. or to be re-settled in any other country.  That legislation raises significant new constitutional questions, and the Court may have been reluctant to take them on if, in fact, they would not have to do so because the case might become moot.

Because the case had developed so late in the just-closed Term, the Court would not have heard it until the next Term even if it had opted to grant review now, unless the Court held a special summer session, which was unlikely.  That, too, may have contributed to the perception that there was no need to act on it Monday.

For the 13 men involved, of course, the postponement means that, even though they are no longer considered to be dangerous or enemies, they will continue to be confined at Guantanamo Bay under conditions that their lawyers contend are little better than those faced by prisoners still regarded as enemies.

They will gain relief from their captivity over the summer months only if the State Department succeeds in efforts – stalled for years — to re-settle all of them.

In the meantime, the D.C. Circuit Court’s ruling in the Kiyemba case — a declaration that no federal judge has any authority to order the release of Guantanamo detainees, at least when the prisoners seek to be transferred to the U.S. — will remain unreviewed and thus fully intact.  Although it applies formally only to an order to transfer the Uighurs to the U.S. to live, federal District judges in other habeas cases have interpreted the Circuit Court decision to mean that they can not order the actual release of any Guantanamo detainee, but can only urge the government to take diplomatic steps to release those who are eligible.

Thus, the combined effects of the Kiyemba decision by the Circuit Court and the new legislative limits imposed by Congress may seriously complicate President Obama’s efforts to fashion new detention policy and to take control over the fate of the 229 detainees remaining at Guantanamo.

In their petition to the Supreme Court, the Uighurs had contended that, absent review of the Circuit Court ruling, the detainees’ fate would depend upon the “largesse” of the Executive Branch.  But it also now depends, at least in the near future, on how far Congress’s new restrictions go to curb how the President may use what authority remains available to his branch of government.

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