Analysis: Some hope for Uighurs?

By Lyle Denniston
on May 21, 2009 at 8:09 pm

Analysis  (with UPDATE at end)

President Obama has indicated, for the first time, that he feels bound by federal judges’ rulings that 21 of the Guantanamo Bay detainees have a legal right to be released.  Seventeen of those detainees, members of a Chinese Muslim minority (Uighurs), now have a case pending in the Supreme Court, to which the Administration is due to reply by May 29 (Kiyemba, et al., v. Obama, 08-1234). 

Those 17, plus the other four whose detention is now technically unauthorized, remain at the U.S. Navy prison camp in Cuba.

In a highly significant speech delivered Thursday at the National Archives in Washington, the President did not indicate how he would carry out his pledge.  (The full text of the lengthy address can be found here.)

He stated his views on detainee release rulings this way: “The courts have spoken   They have found that there’s no legitimate reason to hold 21 of the people currently held at Guantanamo….I cannot ignore these rulings because as President, I too am bound by the law.  The United States is a nation of laws and so we must abide by these rulings.”

As was true of other facets of the President’s broad outline Thursday of his terrorism policies, there were no details on what “cannot ignore,” “bound by,” and “must abide by” will mean in practical terms.

Thus, those remarks left entirely unanswered at least two major questions. The first is whether the President will insist that detainees, although cleared for release, must remain at Guantanamo beyond any court-ordered release while their resettlement is arranged, and, second, whether the detainees will be released into the U.S. if no other country will accept them for resettlement.

The first of those questions arises because the Bush Administration had contended repeatedly in court that, even if a judge ordered a detainee released from Guantanamo, the government had the authority to continue holding the detainee under a kind of “wind-up” or “wind-down” authority of indefinite duration.  It is not clear whether the Obama Administration holds the same view, although there were some intimations that it did in filings in court early in the new administration.

The second question has become the far more sensitive one politically, in the wake of moves in Congress this week and last to block the transfer or release of any detainee to the U.S. mainland.  The Senate version of such a ban would appear to make no distinction between a detainee cleared for release and one not yet cleared.  It would apply to “any individual who was detained as of May 19” at Guantanamo.

The President did not provide a definitive answer on whether he would go ahead and approve the release of cleared detainees into the U.S.  That is precisely what the 17 Uighurs are seeking in their Supreme Court petition, a plea rejected by the D.C. Circuit Court.

Presumably, the Administration will have to take a position on that when it files its response in the Supreme Court near the end of this month (or, later, if it seeks and obtains a further extension of time to prepare the response).

The D.C. Circuit, in overturning a federal  judge’s October order that the 17 Uighurs be brought to the U.S. to live at least temporarily, raised doubts about whether the President could act alone to bring about the release of an alien into mainland U.S.

The President has a task force working on all facets of detention policy, but its report is not expected until after the Supreme Court has recessed for the summer.

In another key part of the President’s Archives speech, he confirmed reports that had circulated for days that he would move to establish some means of long-term detention of terrorism suspects who were deemed too dangerous to release but who could not be prosecuted for crimes.  Again, however, there were few details.

Obama said his government would “exhaust every avenue” to prosecute dangerous detainees, but he added that, beyond that, “there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States.”

For those, he went on, “we must have clear, defensible, and lawful standards for those who fall into this category.  We must have fair procedures so that we don’t make mistakes.  We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.”

Prolonged detention, he said, would not be “the decision of any one man” — a reference to the power, claimed by President George W. Bush, of sole authority to order prolonged detention of any individual deemed to be an “enemy combatant.”

Such a system, Obama added, would involve “judicial and congressional oversight.”  Negotiations will be pursued with Congress over the specific way to craft such a system, the President promised.

It is rather commonly assumed that, in that part of his remarks, the President was alluding to the possibility of creating a new “national security court” that would have the authority to approve prolonged detention without criminal charges — perhaps somewhat akin to civil commitment procedures for the mentally ill or for convicted sex offenders.

Civil liberties and human rights groups have already vowed that they would fight the creation of any new system of detention without charges.  Thus, this aspect of future detention policy, too, seems sure eventually to reach the Supreme Court.

Meanwhile, the Justice Department announced the first plan to transfer a Guantanamo detainee to the U.S. mainland for trial on terrorism charges.  The prisoner, Ahmed Khalfan Ghailani, a Tanzanian national, is accused of conspiring to kill Americans for his role in the August 1998 bombing of the U.S. Embassy in Dar es Salam, Tanzania. The Department news release can be downloaded here.

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UPDATE 10:50 p.m. Thursday

In another development on detainee affairs, a fifth District Court judge on Thursday adopted a definition on the President’s authority under federal law to detain terrorism suspects at Guantanamo.  Chief Judge Royce C. Lamberth adopted as his own the definition outlined on Tuesday by one of his colleagues, District Judge John D. Bates.  Judge Lambert’s order can be found here; a post discussing Judge Bates’ definition, with a link to the Bates opinion, is here.