Detainees: Habeas right now a nullity
on Jun 5, 2009 at 12:07 am
One week short of the anniversary of the Supreme Court’s decision in Boumediene v. Bush, lawyers for 17 Guantanamo Bay detainees complained to the Court on Friday that the ruling has been reduced to a mere exhortation, without legal effect. And, they added, the historic habeas right declared by Boumediene has been made a nulliity by the D.C. Circuit Court with the aid of the Obama Administration.
The sharply worded document (found here) was filed in Kiyemba, et al., v. Obama, et al. (08-1234), a case involving an attempt by 17 Chinese Muslim Uighurs to gain release from Guantanamo and a chance to live at least temporarily in the U.S. It was a reply to the Administration’s defense of a Circuit Court ruling early this year that the courts have no power to order that the Uighurs be brought to the U.S.
The brief plainly was designed to encourage the Court to defend itself against political resistance to release of detainees, and especially to the transfer of any of them to mainland U.S. And it also clearly was aimed at testing the will of the Court’s majority to make real what it declared in writing a year earlier.
Opening with cases in which detainees, filing habeas challenges based on Boumediene, have “won” yet still remain at Guantanamo, the brief commented:  “As we approach Boumediene‘s anniversary, many prisoners have ‘won’ their habeas cases, but few have been released. The Judicial Branch may hold hearings; it may even issue vague and unenforceable exhortations to diplomacy. But that is all. It has become the hortatory branch. Something has gone awry.”
The Uighurs’ document said they “know of no previous habeas decision insulating from judicial remedy the indefinite and unlawful executive imprisonment of a prisioner within the court’s jurisdiction.”
The Circuit Court, now with the Administration’s support, has ruled that none of the Uighurs “can obtain the judicial remedy Boumediene promised,” the brief argued.
The decision below, it added, has declared that the habeas judge, ordering the Uighurs’ release by using power that Boumediene recognized, “in fact has no judicial power at all.” This now extends, it contended, to every judge carrying out the Supreme Court’s directive in nearly 200 habeas cases.
Ridiculing the Administration’s argument that it is still trying to use diplomacy to find places to resettle the Uighurs elsewhere, the brief said those assurances “are like assurances that efforts to cure the common cold continue. No one doubts them. But the imprisonment continues too, and that is what matters in habeas.”
The brief responded tartly to the Administration’s defense of current conditions for the Uighurs — no longer considered enemies — while they remain at Guantanamo Bay. “The Guatnanamo prison becomes a sort of Chataqua village that abounds with picnic tables and television sets….A secure military prision is transformed into a ‘house.’…Imprisonment becomes ‘harborage.’…Prisoners surrounded by razor wire, armed soldiers, and guard towers are said to be ‘free to leave.’ ”
The actual conditions, the brief said, are those of a prison camp “surrounded by impenetrable wire and patrolled by armed guards. No spouse, child, friend or oher visitor comes to it; no employment and little life of the mind are available in it. Communication with the world is strictly limited and monitored. An ocean may be in view, but [the Uighrus] cannot touch it. Day and night they are watched, as they have been for over seven years. These conditions may worsen tomorrow.”
The brief likened the recent votes in Congress to bar the transfer of any Guantanamo detainee to the U.S. mainland to “political hysteria of the moment.”
President Obama also was a target for criticism, with the brief suggesting that the Obama order to close the Guatanamo prison is only “an order to himself” that may not actually bring about the closure.
The political developments, it suggested, make Supreme Court review of the Uighurs’ challenge more urgent. “It is the Third Branch, whose historic role most urgently needs this Court’s review. The significance of Boumediene — of which both the majority and the dissenting Justices were well aware — lies in its reaffirmation that the historic role of the Judicial Branch is to demand the release of prisoners precisely when the political branches find release inconvenient. For this reason the decision was welcome dat home and abroad as a vindication of the Great Writ.”
The Circuit Court, the brief summed up, “posits a hollow writ and a hobbled judiciary. Should the petition for certiorari fail, the federal courts will have sanctioned, within their jurisdiction, unlawful executive imprisonment that may yet extend the indefinite to the infinite.”
