The Obama Administration told the Supreme Court on Wednesday that the legal remedy the Court fashioned for Guantanamo Bay detainees three years ago is working, and that the government is obeying federal judges’ orders to release a number of the prisoners.  The comment, made in a letter to the Court, provided a defense against a criticism by a federal appeals judge last week that the government may be resisting release orders, turning court rulings into mere “advisory opinions.”

The letter was filed in direct response to a new legal brief filed at the Court Tuesday by lawyers for five Chinese Muslim (“Uighur”) detainees, who argued that the Court’s 2008 decision in Boumediene v. Bush has been “nullified” by actions of the D.C. Circuit Court and the Executive Branch.  Both that brief and the new letter by Deputy U.S. Solicitor General Edwin S. Kneedler discussed the critical comments by Senior D.C.  Circuit Judge Laurence H. Silberman in a concurring opinion last Friday.  The judge targeted the Court and the Executive Branch for complaints about the aftermath of the Justices’ ruling in Boumediene.

Defending its policies on Guantanamo, the government letter said that 14 detainees have been released from Guantanamo, in response to judge’s orders, since Boumediene.  Contrary to the claims of the Uighurs’ counsel, it added, “the writ of habeas corpus is effective at Guantanamo Bay.”  The five Uighurs have had two chances at resettlement to other countries, but have refused, the letter noted.  It added that the government was prepared to renew resettlement efforts if the Uighurs would be willing to accept transfer to the Pacific island nation of Palau, where six other Uighurs were resettled in October 2009.

In summing up its record on Guantanamo releases, the letter said that, aside from the five detainees involved in the new case now awaiting the Court’s attention (Kiyemba, et al., v. Obama, et al., or “Kiyemba III,” docket 10-775), “every Guantanamo detainee with a final, non-appealable order granting a habeas petiton has been released from United States custody and sent to his home country or another appropriate country.”

The Court is scheduled to consider the new Kiyemba petition at its private Conference on Friday.  Presumably, it will take into account the latest filings in that case in deciding whether to grant review.  As of now, it is expected that Justice Elena Kagan will not take part in considering that petition, since she took an active part in the case at earlier stages, including a prior appeal to the Supreme Court.

Posted in Cases in the Pipeline, Detainee Litigation

Recommended Citation: Lyle Denniston, U.S.: Boumediene remedy is working, SCOTUSblog (Apr. 13, 2011, 3:46 PM),