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Analysis: Congress moves to control detainees


On the eve of the Supreme Court’s planned look at the most significant sequel to its year-ago ruling in Boumediene v. Bush, Congress has moved to take control of the fate of Guantanamo Bay detainees in ways that could cut back sharply on the power of the courts, and also could limit the President’s powers.

On Thursday, the Justices are scheduled to examine in their private Conference the case of Kiyemba, et al., v. Obama, et al. (08-1234), according to the Court’s electronic docket. Lawyers for 13 Chinese Muslim (Uighur) detainees at Guantanamo are seeking to test the scope of the Court’s constitutional mandate in Boumediene that the detainees at the U.S. military prison in Cuba have a right to challenge their captivity, including a possible right to be released.

Soon, however, President Obama is expected to sign into law a new war budget bill sent to him by Congress last Thursday (the detainee provisions are reproduced here). Congress flatly barred the release of any Guantanamo prisoner into the U.S. — the issue that is the core of the Kiyemba case — and surrounded with conditions the President’s power to transfer any detainee anywhere in the world.

In those provisions, Congress, apparently deeply upset at the prospect not only of release of detainees into the U.S., but their release to live in any other country, moved to take a significant degree of control over transfers, further detention, and even, to a degree, criminal prosecution of any Guantanamo captive.

While the new limits on transfers or release of detainees are written in terms of denial of federal funds (under Congress’s Article I Spending Clause powers), their actual practical effect is to restrict in major ways the President’s use of his powers under Article II.  The bill makes no attempt to curb directly the Article III authority of the courts, but they clearly would have a direct impact.

Some of the provisions, indeed, would appear to have such an impact on the Kiyemba case, whether or not the Court agrees to review the D.C. Circuit Court decision that is being tested in the Uighurs’ petition.  (When the petition was filed, 17 Uighurs were involved; 13 remain at Guantanamo and in the case, since four have just been transferred to live in Bermuda — a move that might at least have been complicated, and might not have occurred at all, if the new congressional limits had been in place.)

It seems likely that the Obama Administration will notify the Court, perhaps before Thursday, about the new legislation, perhaps to reinforce its earlier argument that the Court should deny review of the Kiyemba case.  Solicitor General Elena Kagan promptly told the Court of the four Uighurs’ move to Bermuda.

The Kiyemba case, as it now stands, represents what could be the final chance that some Guantanamo detainees could gain their release and move to the U.S. to live, at least temporarily.  Any such move is barred by the D.C. Circuit ruling that is being challenged; the Circuit Court ruled, in a decision binding on all federal District judges handling Guantanamo cases, that no court has authority to order detainees sent to the U.S.  even if the individual was no longer considered an enemy. If that ruling stands, any transfers to the U.S. would be up to Congress and the President, and Congress has now imposed a flat ban.

The 17 Uighurs won a District Court judge’s permission last October to release into the U.S., but that was struck down by the Circuit Court.  The remaining 13 Uighurs are asking the Justices to reverse that conclusion. 

The District Courts are processing more than 150 remaining Guantanamo cases.  And they are doing so partly under the Constitution and partly under the traditional federal habeas law that dates back to 1789.  The Court ruled in Boumediene that Congress had invalidly suspended habeas, and so restored the right to challenge continued detention at Guantanamo.

District judges have been moving forward with the cases, resolving a host of new legal issues that arose after Boumediene.  In any case that now results in a judge’s ruling that continued detention of an individual was not legally justified, the issue would arise — under the new provisions Congress has adopted — whether the judge had any authority to do anything about such a finding.

If the Supreme Court were to agree to hear and decide the Kiyemba case, it potentially could renforce judges’ authority to order release, at least somewhere, or it could ratify the Circuit Court ruling denying that authority.  If it denies review, then the political branches would seem to have nearly unlimited authority.

Here are the key provisions of the “supplemental appropriation” bill (H.R. 2346) bearing upon the fate of detainees. (It is now at the White House awaiting the President’s expected signature):

** The measure bars the use of any funds to release an individual now at Guantanamo into the continental U.S., the District of Columbia, Alaska or Hawaii.

** It bars the use of any funds to transfer any Guantanamo prisoner to the U.S. for prosecution for a crime, or for detention “during legal proceedings,” until 45 days after the President submits a required secret report to Congress.

** The report is to lay out a plan for what to do with each detainee, with findings of any assessment of risk to the U.S. if the individual is transferred to the U.S. for trial or during legal proceedings, the costs of such a transfer, the legal rationale including any court order for transfer, and a  plan to “mitigate any risk” found.

** The President must also send to Congress in that report a copy of a notice to the governor of any state to which the prisoner will be transferred (or to the mayor of Washington, D.C.), with advance assurances — 14 days before transfer — from the Attorney General that the individual “poses little or no security risk to the United States.”

** It bars the use of any funds, in this bill or any prior legislation, to transfer or release an individual now at Guantanamo to any other country outside the U.S., unless the President sends a secret report to Congress 15 days before transfer.

** In that secret report, the President must provide the identity of the individual to be transferred elsewhere and where he is to be sent, an assessment of any risk to national security, including a risk to U.S. armed forces, posed by the transfer or release of the individual, along with actions taken to “mitigate such risk,” plus any terms of an agreement with another country for such a transfer, including whether any money was paid in the arrangement.

** The President may not shut down the Guantanamo military prison until after he has sent a secret report to Congress “describing the disposition or legal status of each individual” now at Guantanamo.