Saturday, March 21, 2009

Two New Interesting Detainee Filings

Gherebi v. Obama

This filing by several prisoners being held at Gitmo challenges the new detention authority claimed by the Obama administration. It argues that the new detention authority claims to derive its power from the Authorization for Use of Military Force (AUMF), but that the AUMF says nothing about detention power thus the Executive is implying detention power from the AUMF. Petitioners say that the Hamdi and Hamdan rulings state that the AUMF is silent on detention authority, and that federal courts are very hostile to any argument that claims an implied delegation of authority from Congress.

My favorite argument in this brief is that Congress has passed legislation in which it expressly lays out criminal process authority. The brief cites 18 U.S.C section 2339 which seeks to punish those that "materially support" terrorist activity, and it also cites to the PATRIOT Act. Petitioners point out that both pieces of legislation include an explanation of the detention power that attaches to the statute. The argument here is why would Congress define detention authority in some terrorism-related legislation, but not all of it. If Congress can define a statute's detention process then it will do so and any attempt to imply detention authority is done only through what the brief terms, "executive fiat."

The filing's second main argument is that the law of war is violated when those that are merely affiliated with Al Qaeda are detained under the power of the law of war. Petitioners say that in order to detain an "unlawful combatant" (which is the term used to describe suspected terrorists) under the law of war the detaining party must be able to show that the detainee committed a specific act which would allow such authority. Since that is the standard recognized under international law the U.S. cannot detain a person based on affiliation with a terrorist group.

The ultimate request made by the filing is that the court not decide each petitioner's case under the AUMF authority urged by the government, but rather decide each case under the traditional law of war.

Check out the SCOTUSblog article on this filing.

Parhat v. Gates

In another filing one of the Uighurs (see Kiyemba) is asking for a finding of contempt against Secretary of Defense Gates for failure to comply with a previous order issued by the D.C. Circuit Court telling Gates to either release Parhat, transfer him, or have another Combatant Status Review Tribunal in his case. Petitioner argues that since Gates has not transfered him, cannot release him into the U.S. (again see Kiyemba), and decided not to hold another CSRT that he is refusing to do what the court ordered him to do and thus should be sanctioned.

The argument here is that SecDef Gates's noncompliance is "unexcused", but I would strongly disagree with that. The brief admits that the U.S. has engaged in diplomatic efforts with 100 different countries to try to transfer Parhat, but no one wants him. If Gates can't transfer him then he could release him, but the recent Kiyemba decision says that a court cannot order the release of anyone at Gitmo into the U.S. Parhat argues that while a court cannot order Gates to do it, Gates can do it of his own volition. While Gates may have to power to do so (and I'm not totally sure it is only his decision to make) he would face severe public outcry and I could foresee more litigation against him for endangering the public by releasing a known terrorist into the country. The other option given to Gates was to hold another CSRT for Parhat, but CSRT's were found inadequate by Boumediene.

Gates is stuck between a rock and a hard place with Parhat, and other Uighurs that are similarly situated, because he can't win. He can't transfer them without the permission of another suitable country, he can't release them into the U.S. without endangering the public, and holding another CSRT is out of the question. I think transfer is the only way to resolve the situation, but I don't know how we'll make that happen. Switzerland has shown willingness to accept some detainee transfers so that could be a potential solution.

Check out the SCOTUSblog article for this filing here.

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