The Implications Of The Uighur Case.

Dean Boyd at the National Security Division of the Department of Justice sent over the government's position on the impending Uighur case the Supreme Court decided to accept this morning, which could determine whether or not courts have the authority to order Gitmo detainees who have been cleared released into the United States.

Basically the government's position is this:

  • This Administration remains as committed to closing the detention facility at Guantanamo Bay, which has served as a prime recruiting tool for Al Qaeda and strained our alliances overseas, as it was on the day the President signed the Executive Order. Much progress has been made to date.
  • The interagency Guantanamo Review Task Force has completed its initial review of all the detainees held at Guantanamo Bay and has approved a significant number for transfer to foreign nations. Thus far, the Administration has successfully transferred 19 detainees abroad, some of whom had been ordered released by the courts years ago. Our friends and allies have accepted or agreed to accept many other detainees who cannot be sent home due to humane treatment concerns, and are seriously considering taking more.
  • Furthermore, the Task Force has recommended to the Justice Department a number of detainees for potential prosecution in either federal court or reformed military commissions. In the coming weeks, the Attorney General, in consultation with the Secretary of Defense, will determine the appropriate forum for prosecuting those detainees. By Nov. 16, the Administration will announce a first wave of decisions about whether certain detainees will be prosecuted in federal courts or in the reformed military commissions system. We are on track to meet that goal ahead of the deadline.
  • The perspective of the folks representing the detainees is that once a court determines that the government has no right to detain a particular individual, they should be let go. In practice they say, the entire process has slowed down because the courts know that the only thing they can do is recommend that the government initiate the diplomatic process for facilitating a detainee's release.

    As a result, despite the fact that 30 out of 38 habeas petitions have been granted to Gitmo detainees, no more than 13 have been released. In other words, the administration and the task force ultimately decide when and where detainees are released--which from the perspective of civil libertarians, means the habeas proceedings are almost meaningless. But if the SCOTUS decides in the detainees' favor, it would mean giving the courts the authority to order the detainees' release into the United States if they can't be sent home (because of persecution, for example) or quick arrangements aren't made to resettle them elsewhere.

    Shayana Kadidal, senior managing attorney of the Guantanamo Project at the Center for Constitutional Rights, which is representing the Uighurs, explained that “it really has implications for everybody, whether Boumediene is just an empty shell. ... It’s not just about these 14 people who can’t be sent home and have no place to go."

    -- A. Serwer

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