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UPDATE: Kiyemba and the Illinois prison

NOTE TO READERS:  Tuesday night, the blog published a post  on the planned opening of a U.S. mainland prison to house some Guantanamo Bay prisoners, and discussed how that might impact the pending Supreme Court case, Kiyemba v. Obama (08-1234).  [The blog apologizes for the technical difficulties in accessing that post.]  Since it appeared, the blog has obained further details of the transfer decision; the following post thus provides an update.


Analysis (updated)

In the final months of operation of the detention prison at Guantanamo Bay, Cuba, the Obama Administration apparently plans to keep it open for some captives, on the theory that it is winding up resettlement efforts for them, while transferring others for long-term detention at the newly acquired prison facility in the small town of Thomson, Ill.   No detainee who has been cleared for release (either by a federal judge or by an interagency government task force) will be moved to the maximum security prison in Illinois, according to the plan as it seems to exist right now.

The effect of this may enhance significantly the importance of Supreme Court review in Kiyemba v. Obama, even though a transfer to Illinois appears not to await  the seven individuals directly involved in that case — Chinese Muslim (or Uighur) detainees who have been cleared for release yet have no early prospects of leaving Guantanamo to be resettled.

In a background briefing on Tuesday for reporters, arranged by the White House, senior administration officials involved with the Thomson prison project explained the current plan.  (A transcript of that exchange with reporters can be read here.)

A reporter asked the government officials whether it was correct that the Thomson facility would house, among others, “individuals who are going to be transferred to foreign countries.”  In response, one official said: “Those who will be transferred to the custody of our friends or allies overseas will be not transferred to the United States and then transferred further on, but rather directly from Gitmo, transferred.”

The Thomson facility, the official indicated, will house two categories of detainees: first, those sent there to be tried on war crimes charges by a military commission, with those proceedings being held in a new courtroom to be built in the facility, and, second, detainees — none of whom has been designated so far — who officials believe cannot be tried in either military or civilian court, and yet cannot be released because officials deem them to be too dangerous to be freed or resettled.

For the former, the government now has authority from Congress to go forward with the military trials, and do so on mainland U.S. soil (although the constitutionality of such war crimes trials remains an issue n lower court cases).  For the latter group — the detainees who may face long-term captivity at Thomson without any charges or trials — administration officials indicated that they would have to ask Congress for new legislation for that purpose.  This group, once transferred to Thomson, will get some kind of periodic review of their status and, officials indicated, will have access to civilian courts to pursue habeas challenges.

The Chinese Muslim detainees in the Kiyemba case, of course, are not in either one of those categories.  Like some 100 others now at Guantanamo, the Uighurs have won release orders, and presumably now depend upon the government’s diplomatic efforts to find countries that will accept them on transfers direct from Guantanamo.  (Current federal law bars the release of any Guantanamo detainee, even one cleared for release, to live in the U.S. as a free person, although the constitutionality of that restriction appears to be at issue in the Kiyemba case already.)

So, what does the Thomson prison project have to do with the Kiyemba case as it now stands?

There are at least three possibilities:

First, the core issue in the case is whether detainees, captured during the “war on terrorism,” have a right to actual freedom if they prevail in their habeas challenges..  The Uighurs are seeking release as a remedy for detention that the government cannot justify.  But the long-term detainees who will be housed at Thomson also are going to be given access to habeas courts, according to the present plan, and thus it may occur that some of them may be able to persuade a judge that their continued confinement is not justified, and will seek release as a remedy.

Second, the Obama Adminsitratioin is attempting to persuade the Court, in the Kiyemba case, that the release of any Guantanamo prisoner to the U.S. mainland is an issue of immigration law.  The Uighurs, for their part, argue that their case has nothing to do with immigration law, it is all about a constitutionally based remedy for unlawful detention.   If the Court were to accept the government’s argument, then the long-term detainees at Thomson would be treated, after their transfer, as individuals subject to deportation, and could be held for a considerable period of time while awaiting actual deportation.  Officials have already indicated that they plan to use their deportation-related detention authority on at least some long-term detainees.

Third, the Kiyemba case is not limited to the power of the federal courts to order release of a Guantanamo detainee to live in the U.S.   More fundamentally, it is about the division of authority between the courts and the Executive branch over detention policy in general, when U.S. officials decide as a matter of war policy to capture and hold individuals indefinitely to remove them as terrorist threats.

Administration officials made it clear, in the Tuesday briefing, that they believe a Supreme Court decision gives them authority to carry out and maintain wartime detentions. That apparently was a reference to the Court’s 2004 ruling in Hamdi v. Rumsfeld, in which the Court did uphold detention of those captured on an active battlefield.  The Court, however, said in that ruling that, the longer detention continues, even in wartime, the less justification it has.  The Court said it was not writing “a blank check.”  The Thomson detainees almost certainly, in their now-assured access to habeas courts, will be challenging the government’s authority to keep them behind bars without charges or trials.

The part of the Administration’s newly crafted policy toward Guantanamo that apparently will not be implicated in the Kiyemba case is the planned transfer to mainland U.S. of individuals who are going to be tried for crimes, either in military commissions at Thomson, or in regular, civilian federal courts, in New York City and, perhaps, in Virginia.  The Kiyemba case is not about the authority to conduct actual prosecutions of accused detainees. But a host of legal, including constitutional, issues surround all such potential prosecutions, and some of those issues, too, are likely ultimately to make their way to the Supreme Court in the next few Terms.