The War Profiteers - War Crimes, Kidnappings & Torture
October 21st, 2009 - Justices to Decide on U.S. Release of Detainees
By Adam Liptak
New York Times
October 21, 2009
Washington - The Supreme Court on Tuesday agreed to decide whether federal courts have the power to order prisoners held at Guantánamo Bay to be released into the United States.
The court’s decision to hear the case adds a further complication to the Obama administration’s efforts to close the prison at the naval base in Guantánamo Bay, Cuba. A measure in Congress that would allow detainees to be admitted to the United States just to face trial had to overcome strong resistance before winning final passage on Tuesday. The administration has met with only fitful success in persuading foreign allies to accept prisoners cleared for release.
The Supreme Court is unlikely to hear arguments in the case before late February, a month after the administration’s deadline of Jan. 22 for closing the prison, though there have been recent signals that the deadline may not be met.
The case concerns 13 men from the largely Muslim Uighur region of western China who continue to be held although the government has determined that they pose no threat to the United States.
Last October, a federal judge here ordered the men released into the care of supporters in the United States, initially in the Washington area. But a federal appeals court reversed that ruling in February, saying that judges do not have the power to override immigration laws and force the executive branch to release foreigners into the United States.
That appeals court ruling has tied the hands of judges considering challenges from other prisoners at Guantánamo Bay. According to the Justice Department, trial judges have granted petitions for writs of habeas corpus from 30 Guantánamo prisoners. Of that group, 10 have been transferred to foreign countries. None have been admitted to the United States.
The case presents the next logical legal question in the series of detainee cases that have reached the Supreme Court. Last year, in Boumediene v. Bush, the court ruled that federal judges have jurisdiction to hear habeas corpus claims from prisoners held at Guantánamo.
Lawyers for the Uighur prisoners say the Boumediene ruling would be an empty one if it did not imply giving judges the power to order prisoners to be released into the United States if they cannot be returned to their home countries or settled elsewhere.
A Justice Department spokesman, Dean Boyd, said the administration had been working diligently to release or try prisoners held at Guantánamo.
“This administration remains as committed to closing the detention facility at Guantánamo Bay, which has served as a prime recruiting tool for Al Qaeda and strained our alliances overseas, as it was on the day the president signed the executive order” to close the prison, Mr. Boyd said in a statement, adding that nine detainees had been transferred to foreign countries since President Obama took office in addition to those ordered released by the courts.
Sabin Willett, a lawyer for the Uighur detainees, said in a statement that the Supreme Court’s decision to hear the case demonstrated that courts also have an important role to play.
“We hope this will result in a ruling that confirms that the writ of habeas corpus guarantees to the innocent not just a judge’s learned essay but something meaningful - his release,” Mr. Willett said.
The appeal from the Uighurs has been pending in the Supreme Court since April, and it is not clear why the court acted on it now. The Obama administration has sent four of the Uighur prisoners to Bermuda, and Palau has said that it will accept most of the rest. But at least one prisoner apparently has nowhere to go.
The Uighur prisoners have said they fear they will be tortured or executed if they are returned to China, where they are viewed as terrorists.
The new case, Kiyemba v. Obama, 08-1234, may turn out to be moot if the administration is successful in settling all of the Uighur prisoners abroad. Even if that happens, however, other cases presenting the central issue in the case are likely to follow so long as prisoners cleared for release with nowhere to go remain at Guantánamo.
The new case pits a fundamental judicial function, that of policing unlawful imprisonment through writs of habeas corpus, against one entrusted to the political branches, that of enacting and enforcing immigration laws.
In ordering the Uighur prisoners released, Judge Ricardo M. Urbina acknowledged that this conflict creates a difficult separation-of-powers question.
But Judge Urbina said that time weighed in favor of the Uighurs in the constitutional balance. “Because their detention has already crossed the constitutional threshold into infinitum and because our system of checks and balances is designed to preserve the fundamental right of liberty,” the judge wrote, “the court grants the petitioners’ motion for release into the United States.”
The appeals court ruled that Judge Urbina had overstepped his constitutional authority.
“An undercurrent of petitioners’ arguments is that they deserve to be released into this country after all they have endured at the hands of the United States,” Judge A. Raymond Randolph wrote for the majority of a three-judge panel. “But such sentiments, however high-minded, do not represent a legal basis for upsetting settled law and overriding the prerogatives of the political branches.”
In urging the Supreme Court not to hear the new case, the Justice Department said the Uighurs were “free to leave Guantánamo Bay to go to any country that is willing to accept them, and in the meantime, they are housed in facilities separate from those for enemy combatants under the least restrictive conditions practicable.”
But, the Justice Department’s brief continued, “there is a fundamental difference between ordering the release of a detained alien to permit him to return home or to another country and ordering that the alien be brought to and released in the United States without regard to immigration laws.”
Lawyers for the Uighurs, who were captured in Afghanistan or Pakistan after the Sept. 11 attacks, argued that the appeals court’s ruling rendered the writ of habeas corpus an empty gesture. It made courts “powerless to relieve unlawful imprisonment,” the Uighurs’ brief argued, “even where the executive brought the prisoners to our threshold, imprisons them there without legal justification, and - as seven years have so poignantly proved - there is nowhere else to go.”
Copyright 2009 The New York Times Company
External link: http://www.nytimes.com/2009/10/21/us/21scotus.html