Tuesday, March 10, 2009

DoJ Asks for a Stay in Some Habeas Cases

The Department of Justice has asked for a stay in habeas proceedings of any Gitmo detainees that have already been cleared for release. Some detainees at Gitmo have been granted release from custody, but remain in prison because the U.S. has been unable to find a country that will accept them. A few weeks ago, the D.C. Circuit reached a decision in the Kiyemba case, which denied detainees the right to be released in the U.S. just because they were granted release based on a habeas petition. Since Kiyemba denies detainees the right to be released in the U.S., and given the fact that the government will not voluntarily release them into the U.S., the government will have to work through diplomatic channels to find other countries where we can send them.

The DoJ's recent filing asks the D.C. District Court to stay the habeas proceedings of some detainees that have been approved for release while the government seeks diplomatic solutions relating to their release. The reasoning behind the request is that if the government can find suitable countries to send the detainees to then the prisoners' habeas petitions will be rendered moot. The DoJ argues that it will save the government and the court time because these habeas cases should not go forward if release through another channel is being sought. The DoJ says that resolving the cases of these detainees is of the highest priority because of Obama's Presidential Order number 13,492.

I think that the court should grant this order because it makes perfectly logical sense. If these detainees have already been granted release then the only thing keeping them in custody at this point is the inability to find a suitable place to relocate them. I don't think the ease of relocating them will be increased by moving forward with their habeas petitions. Their ultimate goal is release from U.S. custody and that is what the government is already seeking. The bad news for these prisoners will come if the government is unable to find a country in which to relocate them. Since the government is unwilling to allow detainees to be released in the U.S., if we cannot find another country that will accept them, the detainees will be back at square one staring down the barrel of indefinite detention with no foreseeable legal remedy.

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