Possible shutdown of some detainee cases

By Lyle Denniston
on Mar 9, 2009 at 10:02 pm

A federal judge has raised the prospect that the federal courts may lose their authority to review prolonged detention of some Guantanamo Bay detainees who get cleared for release, but have no other country to which they could safely be sent.  The Justice Department has sent a signal that it may in time ask for that outcome, but indicated it wanted the issue put off for now.

The Supreme Court last June ruled that the detainees have a constitutional right to go to court to challenge their continued imprisonment, and should have at least the possibility of gaining “conditional release.” But court-ordered release may not be an option, if the courts do lose their jurisdiction.

The Justice Department, in a new filing in District Court Monday, said that, if it turns out — after a new review ordered by President Obama of the status of each Guantanamo detainee — that a detainee is newly eligible for release from the Navy prison there, “there will be no relief” available from the courts, and the only remaining chance of actual release would be diplomatic efforts to find another country for resettlement. 

Those diplomatic efforts cannot be directed by any court, the Department added.  It thus appeared that, if those efforts do not succeed, or are delayed, the detainees could have to remain in U.S. custody, at Guantanamo or elsewhere.  The President has ordered Guantanamo closed within a year, but the government has made no decision about whether or where detainees might be confined after that.

These developments are unfolding in the U.S. District Court in Washington of Judge Reggie B. Walton.  Earlier this month, the judge told lawyers in cases involving detainees already approved to leave Guantanamo that a recent decision by the D.C. Circuit Court may mean District judges could lose jurisdiction to provide any further review of continued detention by the U.S. military.

The Justice Department’s filing Monday was in response to that word from the judge. It formally asked Walton to put on hold the cases of seven detainees who previously have been cleared to leave Guantanamo.  The cases remain alive for now, the Department said, while President Obama’s team examines overall detention policy, including the cases of individuals once cleared for release but still at Guantanamo.

Those individuals will get priority in the new status review, the Department told Judge Walton. “After a detainee has been approved for transfer to another country under the [Obama] review process,” it said, “in many cases a detainee will have received the only relief the Court can provide with respect to the fact of the detainee’s detention.”

It noted that, in its ruling last month, the Circuit Court blocked a federal judge from ordering any Guantanamo detainee brought into the U.S. after being cleared for transfer.  The filing did not question that ruling, or indicate that the Department would seek to challenge it on any further appeal.

While some detainees may want to continue their habeas cases, after being approved for transfer, in order to get their name cleared from the designation of “enemy combatant,” that would not be sufficient to keep a habeas case alive even on the premise that such a ruling “would make a detainee more attractive to a prospective receiving country,” the Department said.

While the new review process goes on within Obama’s government, the filing said, Walton should put a temporary stop to further court action in the seven detainee cases covered by the document.   The courts are now processing habeas challenges of detainees who have not been approved for release or transfer from Guantanamo, it noted, and lawyers and judges should focus on those to “expedite the detainee litigation as a whole.”

“The Court should not force [government lawyers] to litigate the merits of these cases [involving the seven cleared for release] that may soon become moot as to the ultimate relief sought, i.e., release.”

If a particular detainee is found by the government not to be eligible for transfer, that individual’s habeas case could be resumed, the Department said.