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Analysis: New issue in Kiyemba


President Obama on Wednesday signed into law a new Pentagon funding bill, and with his signature very likely generated a new issue for the Supreme Court when it reviews Kiyemba et al. v. Obama et al. in late winter — did Congress have the authority to put limits on transfers of prisoners out of Guantanamo Bay, Cuba?  A section of the National Defense Authorization Act — Sec. 1041 — seeks to assert congressional control over much of detainee policy for those held at Guantanamo.  (The text of Section 1041 has been reproduced here.)

(UPDATE: The President also signed into law on Wednesday a bill providing spending allowances for the Department of Homeland Security, containing a similar ban on releasing Guantanamo detainees into the U.S., and putting other restrictions on detainee policy. [The text of those provisions has been reproduced here.] They raise the same issue for the Kiyemba case.)

Congress did not say so, in specific terms, but the new provisions would appear to bar the government from carrying out a court order requiring that a detainee be released from Guantanamo to live in the U.S. — exactly the kind of order that the Kiyemba detainees once obtained, and are now seeking to reinstate.  That sets up a potential clash between Congress’s constitutional authority to legislate and the courts’ constitutional authority to provide remedies when they find an individual’s detention to be illegal.  In constitutional terms, it pits the Spending Clause against the Suspension of the Writ Clause.

The new Sec. 1041 provides that the Defense Secretary “may not use any of the amounts authorized” in the new law “”or otherwise available to the Department of Defense to release into the United States, its territories, or possessions, any individual…who is not a citizen of the United States, and is in the custody or under the effective control of the Department of Defense, or otherwise under detention” at Guantanamo.

That is the funding provision that is now binding law, with the President’s approval, and it is the one that will be in effect when the Court hears the Kiyemba case, either in February or, more likely, in March.  The provisions seek to control detainee releases for the period from Oct. 1 of this year to Dec. 31, 2010.   The flat prohibition is only on releases into the U.S.  Other parts of Sec. 1041 allow the Pentagon to bring detainees into the U.S. — perhaps for criminal prosecution for war crimes — provided that is done as part of a “comprehensive plan” affecting every detainee now at Guantanamo.

Lawyers for the detainees in the Kiyemba case have already signaled that they will challenge any such restriction on ultimate release from detention as a violation of the Constitution’s clause that sharply restricts Congress’s power to suspend habeas corpus rights.  Detainees at the U.S. prison in Cuba have such rights, under the Constitution, as a result of the Supreme Court’s 2008 decision in Boumediene v. Bush.  The Kiyemba case is a sequel to Boumediene, testing what remedies are available — in real-world terms — for Guantanamo prisoners who successfully gain release orders in court.

Kiyemba involves 13 Chinese Muslim prisoners who, a year ago, won an order from a federal judge to be released into the U.S., to live in a Muslim (Uighur) community in northern Virginia.  The judge ruled that this was the only alternative, since they could not be returned to their homeland, China, because of fears of persecution or torture.  The government no longer contends that any of the 13 are dangerous enemies.  The judge’s release order, however, was overturned by the D.C. Circuit Court, ruling that entry into the U.S. is not within the power of the courts to order, but rather is controlled solely by the President and Congress.  That is the ruling the pending petition challenges.

The Obama Administration unsuccessfully urged the Supreme Court not to hear their case.  By the time written briefs are due in the case, the Administration is expected to have completed a broad new policy for Guantanamo detainees.  Attorney General Eric Holder, Jr., has said that the government will decide by mid-November on its plans for each of the more than 200 detainees still at Guantanamo.  It is unclear at this point how those determinations will square with the new funding limits imposed by Congress.

All of this activity, however, is expected to be a central point of discussion in the briefing, and in the oral argument to follow.