The Obama Administration on Monday mounted a full defense of Congress’s power to pass new laws to keep Guantanamo Bay detainees out of the U.S. — laws that seek to curb federal judges’ power to control the release of prisoners from the U.S. military prison in Cuba.  The new filing came as Justice Department lawyers once more urged the D.C. Circuit Court to put back into effect a ruling that the Supreme Court had agreed to review, but then returned for a new look.

The filing now completes the briefing and sets the stage for a new ruling by the Circuit Court in the case that has come to be known as “Kiyemba I,” involving five Chinese Muslim Uighurs who have been cleared for release, but remain at Guantanamo while lawyers wrangle and judges ponder over their legal fate.  The detainees’ final filing a week ago was discussed in this post.

The Circuit Court’s prior decision in this case (Kiyemba v. Obama, Circuit docket 08-5424) was returned to that Court by the Justices on March 1, to decide what to do about new developments on where the Uighurs might be resettled, if they leave Guantanamo.  As lawyers on both sides of the case have now framed the issues before the Circuit Court, they are (1) whether to send the case back to a District Court judge to examine new facts — the option detainees’ counsel favor, and (2) whether to reinstate the prior ruling holding that the detainees have no legal right to be released into the U.S. — the option the Justice Department favors.

In the Department’s final filing Monday, the Administration offered a point-by-point rebuttal to the detainees’ contention that Congress, in shutting off access to the U.S. for any detainee at Guantanamo and in putting other restrictions on what they may do if they leave that facility, had violated the Constitution in three ways.  First, the detainees argued that these new laws amount to an unconstitutional suspension of habeas rights conferred by the Supreme Court in 2008; second, that the new restrictions are an invalid attempt to overturn court rulings in the detainees’ favor, and, third, that the new measures are an invalid form of legislative punishment (“a bill of attainder”).

The Administration’s counsel asserted that those limitations are not a suspension of habeas, because detainees have never had any right to enter the U.S. unless Congress and the Executive agree to allow them to do so, and because the Supreme Court has not mandated entry to the U.S. as a habeas remedy for the Guantanamo prisoners.  They also said that  the measures do not intrude on federal judges’ rulings in detainee cases because Congress has simply amended federal law, and has not sought to overrule actual judicial conclusions.  And, finally, Congress did not seek to punish the detainees because they do not single out the Uighurs, but rather reach all of those at Guantanamo.

Essentially all that Congress has done, the document asserted, is to codify a previous bar to entry into the U.S., a bar based upon “Congress’ control over the [nation’s] borders.

Posted in Detainee Litigation