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New pledge on Guantanamo

With a mass-protest hunger strike apparently still spreading among detainees at Guantanamo Bay, President Obama on Tuesday promised to make a new effort to persuade Congress to allow the closing of the prison run by the U.S. military on the island of Cuba.  In the meantime, the President said at a press conference, he has told his aides to “examine every option that we have administratively to deal with this issue.”  He did not describe any of the potential options.  (The President’s comments on Guantanamo can be read here.)

Military figures released at Guantanamo show that a hunger strike that began in early March with six detainees now involved 100 of the 166 individuals there, with twenty-one now being force-fed with tubes, and five now hospitalized.   Lawyers representing the detainees have said that some are protesting military guards’ handling of the Koran, some are objecting to a recent crackdown on cell-sharing, and most are reacting to the prospect of remaining imprisoned indefinitely without charges or a trial.  (A Miami Herald chart based on Pentagon data shows the spread of the hunger strike.)

In a ruling April 18, the supervising federal judge for detainee issues in Washington, D.C., ruled that Congress had barred the courts from reviewing any aspect of the conditions at Guantanamo., including the hunger strike.  Congress has gone further, and sharply restricted the President’s authority to release any individual now at Guantanamo, and has barred the transfer of any detainee to any point within the U.S., even for a criminal trial.  The President told reporters on Tuesday that he was “going to reengage with Congress to try to make the case that this is not something that’s in the best interest of the American people.  And it’s not sustainable.”

While a Pentagon task force has found that more than half of the remaining 166 detainees could be released without posing a risk to U.S. security, the restrictions imposed by Congress have largely barred any releases.  In addition, a series of rulings by the D.C. Circuit Court — left undisturbed when challenged in the Supreme Court — have narrowed almost to the vanishing point any chance that a detainee could win release by direct order of a federal judge.

In a statement filed in U.S. District Court by a Yemeni national at Guantanamo, Musa-ab Omar Al-Madhwani, he said that “we are totally powerless to improve our situation….The only means that we have to express the utter hopelessness of our situation is by participating in a hunger strike.”  Al-Madhwani has recently been transferred to a more restrictive part of the prison “at the request of medical authorities,” Justice Department lawyers said in a court filing this month.

The President said at his news conference that “I don’t want these individuals to die.  Obviously, the Pentagon is trying to manage the situation as best as they can.  But I think all of us should reflect on why exactly are we doing this?…We’ve got a whole bunch of individuals who have been tried who are currently in maximum security prisons around the country.  Nothing has happened to them.  Justice has been served.  It’s been done in a way that’s consistent with our Constitution, consistent with due process, consistent with the rule of law, consistent with our traditions.”

Going back to the tense situation at the military prison, the President said “this is a lingering problem that is not going to get better.  It’s going to get worse.  It’s going to fester…Ultimately, we’re gong to need some help from Congress.”

The Supreme Court has not made a full-scale decision on legal issues at Guantanamo Bay since its 2008 decision in Boumediene v. Bush, although it has reviewed briefly and then turned aside multiple petitions by detainees seeking to contest rulings by the D.C. Circuit against their pleas for release.

Recommended Citation: Lyle Denniston, New pledge on Guantanamo, SCOTUSblog (Apr. 30, 2013, 6:43 PM),