A New Wrinkle in Kiyemba?

Yesterday Lyle Denniston of SCOTUSblog wrote a post drawing attention to Section 1041 of the National Defense Authorization Act which would bar the Department of Defense from transferring detainees at Guantanamo into the U.S. even when the transfer is court ordered. The new law seeks to prevent transferring detainees into the U.S. by not allowing the Secretary of Defense to use any money appropriated to him to effect a transfer.

Denniston's post says that this is a new issue in Kiyemba and while that is true I don't think that it actually puts a new wrinkle into the case. The bottom line determination that the Supreme Court will have to make is whether or not giving detainees the right to challenge their detention through habeas corpus without giving them the right to the remedy of release from detention is constitutional. Kiyemba is about Gitmo detainees that won their habeas challenges years ago but were then kept in captivity at Gitmo because a suitable country for relocation could not be found. For obvious reasons the government, the courts, and the American people did not want the detainees released in the U.S. While are reasons were obvious they are most likely not constitutional. How can you have a system by which those held in captivity can successfully challenge that captivity and not be released? A right without a remedy is useless. I realize that the situation with Gitmo detainees is not so black and white. Releasing those detainees into the U.S. could be a recipe for disaster. Some of those set for release could be hardened terrorists that won their habeas challenge because of lack of government evidence to justify detention. Some set for release may not have been terrorists at all when they were captured, but now that they have been wrongly held at Gitmo for years they may have developed a hatred for America which they may express violently. Regardless of all that though, I cannot see how the Court will come up with a convincing constitutional reason as to why detainees can challenge their detention and succeed but not be eligible for release.

Coming back around to my original point, what I'm trying to say is that while this new law may be an issue that has to be dealt with in Kiyemba, I do not think that it is going to tip the scales in favor of the government. If not granting a detainee release after a successful habeas challenge is unconstitutional then a new law attempting to halt the release of a detainee who is entitled to release is unconstitutional. In the end, I think this new law may add a few pages to the Court's decision but I don't believe that it will be a deciding factor.

*The closer we get to a decision in this case the more I hope that the government can figure it out on its own and avoid a decision by the Court. There are still a few months before oral argument and then time after that before the decision will be handed down. Hopefully the Gitmo situation, or at least the Uighur situation, will be resolved by that point. Administratively closing down that prison is much more desirable than judicially resolving it.

Cert Granted on Kiyemba

IT'S ON PEOPLE!!! Voodoo's favorite detainee case will be heard by the Supreme Court some time in February or March. It's been a long road. The Court tried desperately to give the government more time to get all of the petitioners in the case out of Gitmo, but it was unable to do so. The government will have until the day the Court decides the case to transfer the remaining Uighurs out of Gitmo thereby making the case moot and allowing the Court to not decide the major issue in the case. If the Court does decide the major issue then we will have an answer as to whether the government must release into the U.S. Gitmo prisoners that have prevailed in their habeas challenges. However the Court comes out on the case there will be a major outcry. Stay tuned.

Senate Judiciary Paves Way for USA PATRIOT Act Extension

A bill extending parts of the USA PATRIOT Act (trivia fact: the name is actually an acronym standing for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism") passed through the Senate Judiciary Committee yesterday. The bill that passed through the committee does not change very much of the act but it does affect one notably controversial provision - the one dealing with National Security Letters ("NSL's). NSL's are essentially administrative subpoenas that are issued by the FBI and other agencies to obtain information about individuals from companies such as telecommunications companies and financial companies. The controversial aspect of NSL's was the virtual absence of judicial oversight. A federal agency could essentially send the NSL out to a company with no review or sanction by a court and there was no way for the company to challenge the subpoena. The lack of judicial oversight has since changed, but the NSL's are still controversial. The new proposed bill coming out of the Senate Judiciary contains some changes that would tighten up the standard for issuance of NSL's and require "specific facts" as to relevance.

Downward Spiral Continues in Somalia

The U.S. is delaying aid to Somalia for fear that U.N. officials are illegally funneling the aid to the terrorist group al Shabbab. According to this New York Times article the U.S. is by far the biggest contributor of aid to Somalia, a country where thousands upon thousands are dying of malnutrition.

While the aid is not expected to be cut off permanently this delay situation is a catch-22. While cutting off aid is aimed at not helping al Shabbab it indirectly does help them. The more desperate the Somali population becomes the more susceptible it will be to control by terrorist organizations like al Shabbab. It's also important to note that one reason we went into Somalia in the early 90's was to secure food and aid distribution which was being controlled by warlords. I don't want to get ahead of myself or make absurd predictions, but it's starting to look more and more to me like the U.S. may engage in some sort of intervention in that country.

Worst Plan Ever

As a North Carolina native I've been remiss in not posting about this earlier, but there was not a whole lot to share about it up to now. Of course, I'm referring to Daniel Patrick Boyd and his band of lackeys. They were arrested back in July for planning a terrorist attack. I did not realize until now that they were planning to attack the Marine Corps base at Quantico, Virginia. Daniel Patrick Boyd, are you serious? Out of all the targets you could hit, why would you choose a major U.S. military installation? Not to mention that this particular military base is home to the elite FBI Hostage Rescue Team. It is a place crawling with highly trained warriors. I guess it is marginally less reprehensible than attacking a school bus full of innocent, unarmed children, but it's almost certain that an attack on Quantico would be swiftly and efficiently obliterated before it got very far at all. Furthermore, there was zero chance these jokers were ever going to stay out of jail long enough to get to the point where they were going to carry this out. All of the members of this conspiracy took multiple trips to terrorist hotspots such as Israel, Jordan, Kosovo, and Pakistan. On top of that they were buying all kinds of weapons. It's difficult to think of a better way to get yourself noticed than taking multiple trips to known terrorist countries, and buying up tons of weapons.

Anyways, those are just my thoughts on the situation. Here's the indictment in U.S. v. Boyd, et al.