Federal Judiciary

Analysis: Congress moves to control detainees

By Akin Gump Supreme Court Practice Group

Analysis

On the eve of the Supreme Court’s planned look at the most significant sequel to its year-ago ruling in Boumediene v. Bush, Congress has moved to take control of the fate of Guantanamo Bay detainees in ways that could cut back sharply on the power of the courts, and also could limit the President’s powers.

On Thursday, the Justices are scheduled to examine in their private Conference the case of Kiyemba, et al., v. Obama, et al. (08-1234), according to the Court’s electronic docket. Lawyers for 13 Chinese Muslim (Uighur) detainees at Guantanamo are seeking to test the scope of the Court’s constitutional mandate in Boumediene that the detainees at the U.S. military prison in Cuba have a right to challenge their captivity, including a possible right to be released.

Before Thursday, however, President Obama may sign into law two budget bills sent to him by Congress last Thursday (the detainee provisions are reproduced here). Congress flatly barred the release of any Guantanamo prisoner into the U.S. — the issue that is the core of the Kiyemba case — and surrounded with conditions the President’s power to transfer any detainee anywhere in the world.

In those measures, Congress, apparently deeply upset at the prospect not only of release of detainees into the U.S., but their release to live in any other country, moved to take a significant degree of control over transfers, further detention, and even, to a degree, criminal prosecution of any Guantanamo captive.

While the new limits on transfers or release of detainees are written in terms of denial of federal funds (under Congress’s Article I Spending Clause powers), their actual practical effect is to restrict in major ways the President’s use of his powers under Article II.  The bills make no attempt to curb directly the Article III authority of the courts, but they clearly would have a direct impact.

Some of the provisions, indeed, would appear to have such an impact on the Kiyemba case, whether or not the Court agrees to review the D.C. Circuit Court decision that is being tested in the Uighurs’ petition.  (When the petition was filed, 17 Uighurs were involved; 13 remain at Guantanamo and in the case, since four have just been transferred to live in Bermuda — a move that might at least have been complicated, and might not have occurred at all, if the new congressional limits had been in place.)

It seems likely that the Obama Administration will notify the Court, perhaps before Thursday, about the new legislation, perhaps to reinforce its earlier argument that the Court should deny review of the Kiyemba case.  Solicitor General Elena Kagan promptly told the Court of the four Uighurs’ move to Bermuda.

The Kiyemba case, as it now stands, represents what could be the final chance that some Guantanamo detainees could gain their release and move to the U.S. to live, at least temporarily.  Any such move is barred by the D.C. Circuit ruling that is being challenged; the Circuit Court ruled, in a decision binding on all federal District judges handling Guantanamo cases, that no court has authority to order detainees sent to the U.S.  even if the individual was no longer considered an enemy. If that ruling stands, any transfers to the U.S. would be up to Congress and the President, and Congress has now imposed a flat ban.

The 17 Uighurs won a District Court judge’s permission last October to release into the U.S., but that was struck down by the Circuit Court.  The remaining 13 Uighurs are asking the Justices to reverse that conclusion. 

The District Courts are processing more than 150 remaining Guantanamo cases.  And they are doing so partly under the Constitution and partly under the traditional federal habeas law that dates back to 1789.  The Court ruled in Boumediene that Congress had invalidly suspended habeas, and so restored the right to challenge continued detention at Guantanamo.

District judges have been moving forward with the cases, resolving a host of new legal issues that arose after Boumediene.  In any case that now results in a judge’s ruling that continued detention of an individual was not legally justified, the issue would arise — under the new provisions Congress has adopted — whether the judge had any authority to do anything about such a finding.

If the Supreme Court were to agree to hear and decide the Kiyemba case, it potentially could renforce judges’ authority to order release, at least somewhere, or it could ratify the Circuit Court ruling denying that authority.  If it denies review, then the political branches would seem to have nearly unlimited authority.

Here are the key provisions of the two budget bills bearing upon the fate of detainees:

** The war funding bill (H.R. 2346) requires the President, within 60 days (and every 90 days thereafter), to file a report on Guantanamo to congressional leaders and committees.  The report must identify each detainee remaining at Guantanamo, the basis for detaining each one, what has been done to transfer any detainee to any country, the number of already released prisoners “who are confirmed or suspected of returning to terrorist activities” after release, and an assessment of efforts by al Qaeda to recruit detainees who have been released.

** In the first such presidential report, Congress must be told what process was used for screening detainees believed to have returned to terrorism, how adequate that screening process was in preventing such a return, and what lessons were learned from prior releases on how to reduce the risk of taking up terrorist acts.

** A bill for funding the Justice Department and other federal agencies (H.R. 2847) bars the use of any funds to release into the U.S. any detainee at Guantanamo as of April 30. The ban applies to the continental U.S. including Washington, D.C., plus Alaska and Hawaii.

** It bars any funds to transfer any detainee to the U.S. for further detention or criminal prosecution, until two months after the President submits — in writing — “a comprehensive plan” on what will be done with each detainee.

** For each detainee covered by the limit on transfers to the U.S., the President’s plan must assess the risk to U.S. national security if that person is transferred to the U.S. for detention or prosecution, what such a transfer would cost, what “legal rationale and associated court” ruling may require transfer, a promise by the President that any security risk has been “mitigated” and how that was done, and a promise by the President that he has sent to the governor and legislature of any state where a detainee may be transferred a written report, at least 30 days before a transfer there, assuring that the individual poses no risk to U.S. security.

** It bars any funds to transfer or release a detainee to any country outside the U.S., unless the President, 30 days before any transfer, files a written report to Congress identifying each such detainee, assessing any risk to U.S. security including threats to U.S. service members if such a transfer were to occur and what steps were taken to “mitigate such risk,” and spelling out the terms of any agreement with the other country, including any financial payment as part of the arrangement.

Full post as published by SCOTUSBLOG on June 21, 2009 (boomark / email).