Detainees challenge new law
on Jun 25, 2009 at 10:49 am
Hours after President Obama signed into law a new set of restrictions on release of Guantanamo Bay detainees, lawyers for a group of prisoners told the Supreme Court Thursday that the law appears to violate the Constitution. That raises the stakes on the case of Kiyemba, et al., v. Obama, et al. (08-1234) — a petition that the Court was scheduled to consider at today’s private Conference. The lawyers’ letter is available here.
Lawyers for the 13 prisoners involved — members of a Chinese Muslim sect known as Uighurs — said that the Court should go ahead and grant review of their case, and consider as part of that review “the impact of the new law.” But, they added, the statute “appears to be an unlawful suspension” — that is, a violation of the Constitution’s strict limit on suspension of the writ of habeas corpus. A year ago, in Boumediene v. Bush, the Court struck down earlier legislation limiting detainees’ legal rights, finding that to be an unlawful suspension of the writ.
While U.S. Solicitor General Elena Kagan advised the Court Thursday morning of the new legislation, she did not make any comments on it. Earlier, she had urged the Court not to hear the case, leaving the development of detainee policy to the White House and Congress. Her letter and the full text of the new law are available here. The new law is a supplemental appropriations measure that covers many subjects other than the detainee provisions, such as funding current military war operations. The detainee clauses are in Section 14103, found on pages 62 and 63 of the bill text. The measure also imposes new duties on the President to send reports to Congress on what is being done with each of the 229 detainees remaining at Guantanamo. That provision is Sec. 319, found on pages 16 and 17 of the bill text.
The detainees’ counsel said that, “in another case,” the Court might want to send the lawsuit back to lower courts to examine the effect of the new legislation. But, they went on, the D.C. Circuit Court has ruled for the government already, so such a remand might not illuminate the issues in the case.
Passage of the new law, their letter added, is an argument for Supreme Court review, not against it. “At the heart of this case is the question whether habeas corpus represents a real check on the political branches. The new legislation sharpens that question.”
District judges have been applying the Circuit Court ruling, the letter noted, and as a result may only request, not order, the release of any Guantanamo prisoner.
In earlier opposing review of the Kiyemba petition, the Solicitor General supported the Circuit Court ruling, and said that diplomatic efforts to resettle the Uighurs were continuing. (Four of the 17 previously involved in the case before the Justices have now been released, and are living in Bermuda. The other 13 remain at Guantanamo, and their lawyer, in a letter to the Court a week ago, said that “no solution has been found” for those 13.)
All of the new filings are being considered by the Justices as they consider whether to hear the case, according to entries on the Court’s electronic docket.
