Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
There is a very interesting battle going on in Washington over the question of which branch of government controls what must be done with terrorism detainees, both before and after having a trial. A sizable number of detainees have already been found innocent but they are still being held because neither the Bush nor Obama administrations wanted to release them in the United States but no other country has been found to take them.
The problem is particularly acute for the 13 Chinese Uighurs who have been acquitted in federal court but are still being held at Gitmo because they can't be sent back to China, where they will likely be imprisoned by the government, and no one wants them released here. In fact, the Third Circuit Court of Appeals ruled in April that the federal courts cannot order any detainee to be released in this country.
But if they aren't released here and can't be released to their home countries or to any other country, they just stay locked up. Daphne asks the obvious question:
The real question is: Does the right to habeas corpus have any meaning if the courts can't order the prisoners released?
The Obama administration has filed briefs with the Supreme Court urging them to let the third circuit ruling stand and not to hear the appeal because they don't want the courts to assert authority over what has to be done with the detainees. But Congress has also gotten into the act and wants to take some of that power away from the executive branch.
The supplemental appropriations bill that Obama signed last week includes a provision "that prohibits the release of Guantanamo detainees into the United States, and restricts the president's ability to release them to other countries without Congressional approval."
Lawyers representing Guantanamo detainees are already calling the law an unconstitutional suspension of the writ of habeas corpus, as SCOTUSblog notes today. Sabin Willett, the lead lawyer representing the 13 Uighurs who have appealed to the Supreme Court to review their case, today wrote to the court urging it to review the decision of the U.S. Circuit Court of Appeals in Washington, D.C., in Kiyemba v. Obama, which prohibits the federal courts from ordering any detainees released into the United States. As a result, while according to American Civil Liberties Union lawyer Jonathon Hafetz, Guantanamo detainees have so far won about 26 of 31 habeas corpus cases decided by federal courts so far, most remain imprisoned at Guantanamo Bay. Lawyers, including Willett, have argued that the result is effectively to deny them the right to habeas corpus that the Supreme Court ruled they have in Boumediene v. Bush.In his letter today, Willett urged the Supreme Court to take up the case, saying that "a failure either to reverse or affirm the decision below will leave unsettled a question that goes to the heart of habeas jurisdiction. ..."
Those attorneys are clearly correct. You can't grant a detainee a trial, then acquit them and then refuse to release them. The courts are likely to recognize the difficulties and give the administration time to find a suitable place to send those detainees in lieu of releasing them in the US, but that time can't be indefinite. At some point, you simply have to release them somewhere. To hold them forever after acquittal clearly violates their rights.
The Obama administration has a serious problem here. They want the courts to stay out of it, but just signed a bill allowing Congress to intervene, something I'm sure they also don't want and that might well be unconstitutional. I don't think Congress has such authority over the executive, though they clearly do over the judicial branch. It's all quite confusing and messy.
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It would be interesting in hearing the arguments on why we don't release them back to the country where the detainees were originally seized. I assume the plural in terms of arguments since there may be distinctly different situations where the wisdom of such a policy may very from one extreme to another. Why not the point of origin just seems to be the question left begging if they truly are innocent, while also remaining cognizant some of these detainees may have been political dissenters picked up in countries that harbor no dissent.
Posted by: Michael Heath | July 3, 2009 9:40 AM
The irony here is, in a sense, Congress is arguing for the release of detainees into the US just a few weeks after the ridiculous paranoid fear that detainees would be transfered to US supermax prisons...
Michael,
I think the problem is that the countries, including the ones in which the detainees were seized, don't want them or would likely lead to them being imprisoned or even executed depending on the individuals in question. We can't exactly airdrop them into a country that doesn't want them or ship them off to a country that will then put them in prison after we've found them to be innocent ... can we?
What makes it worse is the response, a number of the Uighurs were sent to Bermuda where the PM ended up going through a vote of no-confidence. It wasn't that close a vote, but I would have to believe that the vote alone scared off some leaders who might have agreed to take in other detainees.
Posted by: dogmeatIB | July 3, 2009 10:55 AM
dogmeatib asked me:
I of course considered these countries initial reluctance prior to asking my question. I think America continues to vastly underestimate* our leverage when we engage with others. From a cultural perspective, I know of few peoples that are worse at negotiation than Americans, (Eastern Europeans raised in communism being one exception), an area where I have a large amount of experience given my global purchasing experiences (the affects of which meant I spent time and money training my American buyers to negotiate given they never learned it prior to their role working with me).
*Maybe the weakest negotiation in this decade was Bush failing to get support from Turkey to invade Iraq in 2003, where we wanted to establish a western flank, instead we invaded without a western flank, which exposed the western border. If there had been WMDs, they'd now be in Syria, where they would have had been far more available to terrorists. Turkey is a frickin' NATO ally, and they tell us no and we say OK? I can't imagine being any weaker than that. One good example why I perceive Bush Jr. as one of the weakest Presidents' ever and a good argument Bush knew there were no WMDs given his invasion would have increased the threat level, not eradicating or better containing it.
Posted by: Michael Heath | July 3, 2009 11:14 AM
There are a couple of obvious ones.
First, we can't force the country where they were seized to take them if it refuses.
Second, if returning them (as with the Uighurs) would result in them being subject to (more) flagrant human-rights abuses then they should have the chance for sanctuary.
For crying out loud! We harbor bloody-handed deposed dictators and call it sanctuary. When a bunch of men from a repressive country are kidnapped, unjustly accused, rot in a concentration camp for years, finally win trial and are acquitted but face imprisonment or death in their home country, they are undesirables?
Posted by: D. C. Sessions | July 3, 2009 11:49 AM
Michael,
I agree a certain amount of negotiating would help us with the problem and I agree that we are terrible with it as a group. The problem is, as I pointed out with the Bermuda situation, any leaders who are in any way in a questionable position with their parliamentary governments are going to be especially reluctant in these circumstances. I think we'll find safe places for them, it is simply going to take some time and careful negotiations, Americans as a group aren't good at either, we want everything done yesterday and can't be bothered to negotiate.
Posted by: dogmeatIB | July 3, 2009 11:56 AM
The Obama Administration does indeed have a huge mess on its hands, one that is entirely the making of the prior Administration's poorly-conceived plan (a plan in which a supine Congress was complicit) to deal with persons it wanted to label "enemy combatants." There is a constitutional fix for this mess, though it won't give the Uighur plaintiffs the relief they ultimately want.
The DC Circuit's Kiyemba opinion rests on a premise and thus upon precedents that are inapposite: that the political branches can exclude from entry to the US any non-US persons they want to exclude. That is true. Art. I, Sec. 8 gives Congress this authority and for the sake of argument, I'm willing to concede that the Executive has some authority under Art. II to exclude aliens even if Congress has not clearly spoken on the matter, as when necessary under the Take Care Clause, for example.
But that is not the situation here. The Bush Administration, together with Congress, chose not to exclude these Uighurs from the jurisdiction of the US. The political branches brought these prisoners to Guantanamo, a place the Boumediene Court recognized is within the functional sovereignty of the US. Far from being excluded from the sovereignty of the US, they were admitted, albeit on very limited terms -- for the purpose of determining whether they were "enemy combatants" who could be held for further proceedings. Having now determined they are not, that basis for holding them has disappeared. The Uighurs are quite right, then, that they are being wrongly held; habeas is the appropriate remedy.
But it does not follow that they are entitled to unconditional release. They can be released from military custody, but turned over to the custody of the Executive for detention under US immigration law. Once in that custody they can be held pending deportation proceedings and in the meantime, they can seek asylum according to US law. If they are able to establish that they would likely be tortured or killed upon return to their native country, the asylum process then entitles them to remain here. If not, they can be involuntarily deported.
I realize this is not the outcome the Uighurs seek, but it does resolve the GITMO mess. In addition, it does not solve the overarching problem of what to do with these people, since neither release to the US nor to a foreign country seems desirable in many cases. Similarly, it does nothing to change the underlying fundamental unfairness of their captivity in the US, since they never sought to be here in the first place. All it really does it put their continued detention on a bit firmer legal footing -- namely, domestic immigration law. This is essentially the result that Judge Rogers of the DC Circuit would reach.
The Obama Administration has no really good alternatives. Like so many of the problems it inherited from its predecessor, this one presents novel issues -- issues that will need to be resolved within our constitutional and legal framework. It will be a slow and painful process, once that is likely to last well beyond even President Obama's tenure in office.
Posted by: Dan | July 3, 2009 12:41 PM
Isn't the real question what to do with the borderlines cases? The suspects with legally obtained evidence can be tried, even in military courts. But what do you do with the solid case where evidence has been tainted by torture, but you know the guy is guilty (let's assume we know for the sake of argument). I'm open to suggestions. Should we just let them go and conduct 24 hour surveillance? If so, which country do they get sent to?
Posted by: Phil | July 3, 2009 3:22 PM
@Dan
You said that we can release them to the Executive branch for detention under immigration law, subject to deportation hearings. How does that work for someone who broke no law in coming into the country, and in fact never even attempted to come into the country? If anyone in Gitmo was actually arrested here in the US you would have a point, but I can't imagine a deportation hearing for someone we arrested and forcibly transported here.
Posted by: psweet | July 4, 2009 8:53 AM
psweet--
What matters is not whether a person enters (or attempts to enter) the country illegally. Likewise, the fact that a person is not arrested in the US does not control. What matters is that the person is a non-citizen subject to the jurisdiction of US law. We (the Bush Administration) brought them to a place that is within the sovereignty of the US and subjected them to the jurisdiction of our law. Again, I'm not claiming it is a good remedy, but it is a remedy.
Posted by: Dan | July 4, 2009 10:53 AM
I suppose I could understand this in cases where the person in question was free to return to 'normal' life. For instance, in human trafficking cases, I can see that a victim could be dealt with through immigration, even though they had no say in the situation. But if we're talking about sending people to places where they are likely to be locked up, that is the equivalent of a criminal sentence. And all of our criminal laws, I believe, require either intent or willful negligence. I'm not a lawyer, and I can see that you may be correct ... but it's definitely not right! As you said, a remedy, but not a good one.
Incidentally, there is a bit of a problem with your statement -- the Bush administration tried to claim that it wasn't subjecting them to our jurisdiction, which was the initial reason for using Gitmo. Of course, if the land there really was under Cuban jurisdiction as claimed, then we have a problem -- I can't imagine Castro ever granted us police powers there.
Posted by: psweet | July 4, 2009 6:47 PM