Thursday, October 29, 2009

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.

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