Transfer of Guantanamo detainees blocked
on Mar 29, 2005 at 5:10 pm
This is another in a series of reports on the aftermath of the Supreme Court’s June 28 decision in the case of Rasul/Al Odah v. Bush.
In a ruling almost certainly generating a new controversy headed for higher courts, a U.S. District judge in Washington on Tuesday barred the Pentagon from sending overseas 13 Yemeni nationals being held as terrorist suspects at the U.S. Naval Base in Guantanamo Bay, Cuba. U.S. District Judge Henry H. Kennedy, Jr. issued a preliminary injunction requiring the government to give the detainees’ lawyers 30 days’ advance notice “prior to transporting or removing†any of the individuals from Guantanamo.
This is the latest in a series of District Court orders prompted by recurring reports that the Bush Administration has made plans to ship many of the Guantanamo detainees to other countries, perhaps for further detention or prosecution. The detainees fear that such transfers may put them in countries where they will be tortured; the government has attempted to give assurances that torture would not occur.
The Administration believes that the issue of transfer of any detainee is a matter within the sole discretion of the Executive Branch. In a hearing before Judge Kennedy a week ago, the Justice Department strenuously objected to any order curbing transfers, arguing that such an order would undermine the Executive Branch’s authority “to speak with one voice†in foreign policy matters, including negotiations with other nations over transfers of detainees at the Cuba base.
Judge Kennedy, nevertheless, ruled that the detainees must be protected from transfer in order to keep intact their federal court cases challenging the government’s power to continue detaining them at all. (Abdah, et al., v. Bush, et al., docket 04-1254)
“The court,†the judge said, “does not have any indication that notifying [the detainees’] counsel 30 days ahead of planned transfers of their clients will intrude upon executive authority.†While the judge said that the government had shown a public interest in “vigorously pursuing terrorists and holding them to account for their actions,†he declared that it is not “a foregone conclusion†that these detainees actually are enemy combatants who had engaged in any hostilities toward the U.S. or aided those who have. That is the core issue in their pending habeas challenges, Kennedy noted.
The judge based his order against immediate transfers not on the detainees’ claim that they may face torture or indefinite imprisonment if sent abroad, but rather on their claim that such transfers “would eliminate any opportunity…to ever obtain a fair adjudication of their fundamental right to test the legitimacy of their executive detention.” The judge noted that the parties agreed that upon transfer, “the [U.S.] courts will no longer retain jurisdiction to provide any relief [the detainees] seek.â€
The order requiring advance notice will remain in effect, the judge said, until their habeas challenges are decided in federal court. That may be a number of months, at a minimum, since the whole question of the captives’ right to pursue their habeas claims is already on appeal to the D.C. Circuit in a number of cases, and may ultimately go to the Supreme Court – but probably not until next Fall, at the earliest.
(Thanks to Howard Bashman of How Appealing blog for the tip and the link to the court order and opinion.)
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