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Analysis: Habeas, one year later

UPDATE Saturday a.m.

The Justice Department announced on Friday that three Saudi nationals held at Guantanamo Bay had been released and sent to their home country.  This brings the number of detainees remaining at Guantanamo at 229.  The Justice Department news release is here.



With their morning coffee Friday, Washingtonians could read the top story in the city’s biggest newspaper, the Washington Post.  The headline read: “Obama Bows on Settling Detainees: Administration Gives Up on Bringing Cleared Inmates to U.S., Officials Say.”  (The story, with the headline, can be read here.)  Very few of those readers would remember that they were reading the story on an anniversary: it was just one year ago Friday that the Supreme Court decided Boumediene v. Bush.

When Boumediene was decided, there were about 250 detainees being held at the U.S. military’s island prison at Guantanamo Bay, Cuba.  In that decision, the Court recognized a constitutional right to challenge continued detention of those prisoners.  The Court indicated that, if the government could not justify continuing to hold them, they were entitled to release, perhaps with conditions, under traditional habeas law.

A year later, 232 remain at Guantanamo.  What federal judges applying the Supreme Court’s Boumediene decision have discovered is that, if they order release, what that means in reality is eligible for resettlement, not actual release.  And, it now appears, resettlement in the U.S. has been all but eliminated as an option for any detainee eligible for release, apparently in response to an outcry in Congress against allowing any detainees to be moved to the U.’S. to live.

Federal judges, in fact, have ruled that 17 of those remaining at Guantanamo cannot be held any longer since they do not qualify as “enemy combatants.”  The Obama Administration task force on Guantanamo has concluded that more than 50, and perhaps a consdirable number beyond that, of the others are eligible for release.

But the process of resettling anywhere has turned out to be exceedingly slow.  The pace, in fact, may slow even further if, in fact, transfer of any detainees to live in the U.S. has been ruled out.  A number of foreign governments apparently have indicated that, if the U.S. expects them to accept Guantanamo detainees, it cannot make the argument very persuasively if it will not accept any in the U.S.

Much of this difficulty is now awaiting the Supreme Court’s attention.  It has before it the case of Kiyemba, et al., v. Obama, et al. (08-1234).  The Justices are currently scheduled to consider, on June 25, whether they will hear the appeal.

  That case represents an attempt by 13 Chinese Muslim Uighurs at Guantanamo to be released, since they are no longer considered enemies of the U.S.  A federal judge eight months ago ordered them transferred to the U.S. to live temporarily, but that was struck down by the D.C. Circuit Court.

Four other Uighurs had been involved in that case, but on Thursday, the U.S. allowed them to be transferred to live in Bermuda.  The Justice Department promptly notified the Supreme Court of that move, indicating that efforts were continuing to resettle the other 13.

If that resettlement occurs soon, and there have been indications that it might, then the Supreme Court likely would dismiss the pending case. 

 No other case on release into the U.S. would be likely to develop in the future, because the D.C. Circuit’s ruling — that U.S. courts have no authority to order detainees sent to the U.S. — is binding on all of the District judges reviewing Guantanamo cases.  These judges, in fact, have been applying that ruling; when they order habeas relief, they are able only to tell the government to use its best diplomatic efforts to get resettlement.

Even if the government is unable to place the remaining 13 Uighurs in some country before the Supreme Court acts,  it could do so even if the Court grants review, and still the case would likely be dismissed as “moot,” or legally a dead letter.

Twice before, the Executive Branch has been able to get major Supreme Court cases on its detention powers scuttled by changing the situation of detainees; in both cases, they were moved out of military custody and turned over for criminal prosecution.

Because the Supreme Court has four tmes overturned appeals court rulings that favored government detention powers, the Executive clearly has reason to ponder whether that could happen again on the issue of court-ordered release into the U.S.