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Gitmo Detainees: Waiting for Obama?

November 24, 2008 2:39 PM

It's been five months since the Supreme Court threw open the courthouse doors to hundreds of terror suspects at Guantanamo Bay, ruling they have a constitutional right to challenge their detention in federal court.

This morning, a federal appeals court panel took up the hard work of divining just what the justices meant in that decision. The panel heard arguments in a case that brings home, literally, some of the consequences of the landmark decision, Boumediene v. Bush.

The rubber has hit the road. In the wake of that decision, district court judges, with the Supreme Court's blessing, now are second guessing military decisions on which terror suspects belong in custody at Guantanamo.

And now, as an Obama Administration is preparing to take office, district court judges are beginning to side with detainees, ruling some of them don’t belong at Guantanamo.

But then there's the next step. Once a judge rules the government doesn't have the evidence to hold them at Guantanamo, what’s he supposed to do about it? Where are these detainees -- some of them still considered "enemy combatants" by the government -- supposed to go?

Last month, federal District Court Judge Ricardo Urbina took the extraordinary (although, thanks to the Supreme Court, not entirely surprising) step of ordering 17 former terror suspects released into the United States. It marked the first time a judge had ordered detainees at Guantanamo released into this country.

The men, a group of Chinese Muslims known as "Uighurs," have been at Guantanamo more than six years. They had weapons training from the Taliban in camps in Afghanistan, and were picked up in Afghanistan and Pakistan after 9/11.

But they're now in a legal no-man's land. They're no longer considered "enemy combatants," because China, not the United States, was their enemy. That means they can't be sent home to China, which could torture then. But no other country will take them off our hands. So they've been stuck, in limbo, down in Gitmo.

Urbina, relying on the Boumediene decision, solved that problem: He ordered them freed into the Washington, D.C. area.

Not surprisingly, the Bush Administration went straight to the appeals court to block the order and challenge the ruling, and it won a temporary reprieve while the case was appealed.

This morning, a highly skeptical federal appeals court panel took up the case. At the end of an hour-long hearing, it appeared poised to reject Urbina’s order and, in doing so, find some limits to Boumediene.

Two of the panel's three judges, Karen Henderson and Raymond Randolph, seemed sympathetic to the Bush Administration's argument that the question was for the political branches -- not the federal courts -- to decide.

"The District Court had no right under our laws to order them brought to the United States and released here," said Solicitor General Gregory Garre.

Garre told the appellate panel this morning that the Uighurs' situation was "regrettable," but that judges have no authority to order detainees released in the United States. He said the government is continuing efforts to find another country to take them.

Henderson and Randolph appeared inclined to agree, suggesting the detainees have no constitutional or statutory right to be released here in this country.

Those two voted last month to block Urbina's order during the government's appeal, over a strong dissent by Judge Judith Rogers.

In this morning's argument, Randolph -- who has taken an expansive view of executive power in the past -- was especially forceful. Toward the end, he homed in on the language of Boumediene, which said judges have the authority to order a "conditional release" of the detainees.

Randolph suggested that the Uighurs may already have won that, since the Bush Administration has agreed to release them "on the condition that it finds another country" who will take them.

"In fact, these people are conditionally released," he said during the hearing.

A ruling could be months away. If the detainees lose, which seems likely, this case will be appealed to the full appeals court -- or head straight to the Supreme Court.

There, the justices could come face-to-face with the consequences of Boumediene.

But they won't be reading legal briefs or hearing arguments from Greg Garre.

In his place will be a new solicitor general, representing the Obama Administration. Obama has said repeatedly he plans to take a different course with the detainees, including closing Guantanamo.

Obama also will have to decide a different question: Whether, as President, he objects to the idea of federal judges having authority to order former terror suspects freed into the United States.

November 24, 2008 in Supreme Court | Permalink | User Comments (13)

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This should make every American feel safe and secure.

God Help us All

Posted by: seah | Nov 24, 2008 3:27:02 PM

The "enemy combatants" were rounded up on the global battlefield under the direction of George Bush, commander in chief.

If Bush, after 6 years, leaves it to his successor to determine the fates of people for whom we have no evidence of guilt, then it is what it is.

Posted by: Neil | Nov 24, 2008 4:40:50 PM

I have a feeling the only ones that will benefit from this are their lawyers. This is going to be painful!

Posted by: LongT | Nov 24, 2008 4:52:30 PM

Liberals whining about Gitmo and a spineless Kennedy (he had neither the intellectual integrity nor the guts to overrule Eisentrager) sow what they reap.

Posted by: heh | Nov 24, 2008 9:27:49 PM

You certainly would not want judges "second guessing military decisions", especially if you were arbitrarily declared an "enemy combatant", stripped of your US citizenship and disappeared indefinitely by the "Commander in Chief", would you? Don't think it can happen to US citizens? Study the Military Commissions Act.

"That means they can't be sent home to China, which could torture then."

Why the sudden concern for their comfort? What makes you think they have not been tortured in US custody under the legal cover of apologists like yourself?

Posted by: dragon | Nov 25, 2008 8:37:45 AM

Send all released terrorists to blue states.

Posted by: LongT | Nov 25, 2008 1:57:57 PM

Don't be thick. US citizens can challenge their detentions via habeas and the government has said so, while the Supreme Court has held so, in Hamdi. The MCA only stripped habeas jurisdiction from courts with regards to aliens, not US citizens. And besides, under the canon of constitutional avoidance, the MCA may not be read in a way that conflicts with the holding in Hamdi, meaning that labeling a citizen an 'enemy combatant' alone will not strip him of habeas rights.

Nor can someone be "stripped" of his US citizenship since that is unconstitutional under Trop v. Dulles. As such, the MCA has no citizenship-stripping provision either, which means you are delusional.

I suggest you study the Military Commissions Act before embarrassing yourself.

Posted by: heh | Nov 25, 2008 2:33:15 PM

@heh: All that would make sense if we were talking about an Administration that feels bound by the law and the Constitution. But if the government can detain someone secretly and hold them incommunicado, how do we know they AREN'T citizens? Because Bush says so? I'm glad you feel safe. I don't.

Posted by: A. L. Flanagan | Nov 26, 2008 3:34:04 PM

What a silly reply. If the government can NOT detain someone secretly and hold them incommunicado, how do we know there AREN'T any being held secretly and incommunicado? You won't know all the same. So your "not knowing" doesn't have anything to do with what the government can or cannot do legally.

In which case whether or not the legal discussion "makes sense" has nothing to do with, and is independent of, your paranoia. You would wonder the same thing regardless of the legal situation (i.e., "what the government can or cannot do"). That you don't trust the government is basically what your complaint boils down to. Wow, gee whiz!

I'm sorry you feel paranoid, but it has no bearing on whether a legal discussion makes sense, since you would feel the same way regardless.

Posted by: heh | Nov 26, 2008 7:09:02 PM

This is only out of sheer incompetence on the part of the Bush Administration (Cheney, in particular, who was driving this policy) that the Uighurs were considered such a threat that they have been detained all these years. If they had been tried by conventional means, using due process and principles under which this country was founded, none of this would have been a problem.

Posted by: scott | Nov 29, 2008 10:33:32 AM

That's a big "if" Scott. While you can make a good point now, consider that you have the advantage of 6 years of hindsight.

Given the climate and the information available in 2002, can you tell me you'd have done it differently?

Posted by: Dave | Nov 29, 2008 2:10:38 PM

@scott:

"If they had been tried by conventional means, using due process and principles under which this country was founded, none of this would have been a problem."

As even the Supreme Court thinks that it is fine for them not to be tried by conventional means ("Justice Scalia can point to no case or other authority for the proposition that those captured on a foreign battlefield ... cannot be detained outside the criminal process."), and recognizes that the "principles under which this country was founded" do not include extending full due process rights to them (observing that curtailed due process may be met by a "properly constituted military tribunal" because "the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting"),

Posted by: heh | Nov 30, 2008 12:40:58 AM

Maybe they are. Obama did make a definitive stance on his views on torture...

Posted by: Coot66 | Nov 30, 2008 2:57:22 AM

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