Federal Judiciary

Ban on detainees transfers challenged

By Akin Gump Supreme Court Practice Group

Lawyers for seven Chinese Muslim (Uighur) detainees at Guantanamo Bay urged the Supreme Court on Friday to rule that new laws passed by Congress to bar the transfer to the U.S. of any detainee there do not apply to any prisoner who was won a court order requiring his release.  If the law is not narrowed in that way, the attorneys contended, it would be unconstitutional.  The arguments were made in the merits brief in Kiyemba, et al., v. Obama, et al. (08-1234), likely to be argued in late March.

An interpretation of the new laws “that would raise constitutional problems must be rejected in favor of an alternative interpretation that is ‘fairly possible,’ and that avoids the constitutional problem,” the brief argued.  One way to do that, it suggested, would be to interpret the law so that it was not actually intended to suspend the constitutional right to make a habeas challenge — a suspension that would be unconstitutional.

“To avoid constitutional infirmity,” it asserted, the new ban “should be read to exclude from its scope any person who has prevailed in habeas.”  So far, federal District judges have ordered the release of 31 of the 38 detainees whose habeas cases have been decided.  However, at least 15 of those who gained such orders are still at Guantanamo, including seven of the Uighurs involved in the Kiyemba case.

A reading of the law to exclude prisoners who have won release orders, the attorneys contended, would actually square with the view the government itself has taken of detainees who have been ordered freed.  The Uighurs, it noted, are now regarded by the government as no longer detainees, and the new laws against U.S. transfers speak only of those “detained” or designated as “detainees” as of June of this year.

Before the Court would allow the scuttling of the habeas victories, the brief said, it would demand from Congress “an unambiguous and express statement” that it was taking away habeas rights that were established by the Supreme Court for Guantanamo detainees in the 2008 decision in Boumediene v. Bush.

None of the transfer bars, it went on, “expresses an intention to deprive courts of the power to issue the release orders that Boumediene held they may give to a person who prevails in habeas.  Congress confined itself to the manyh Guantanamo prisoners who havfe not prevailed in habeas.  This construction makes particular sense in a political context in which the President had announced a broad intention to close the prison [at Guantanamo], and Congress’s concern might be with the undifferentiated relocation of the prison population, including those properly held….To avoid the constitutional problem, it may be assumed that it was only to this general opulation, and only to extent of the identified agencies and budgets [covered expressly by the bans], that Clongress referred.”

If, however, those provisions are read to bar release of the Uighurs, who have won their right to release, the bans would violated the Constitution’s Suspension Clause, the ban against legislative punishment (”bills of attainder”), and the guarantee of equal protection of the laws.  In addition, elsewhere in the brief, the Uighurs’ lawyers argued that failure to carry out their actual release as a habeas remedy would violate the Constitution’s guarantee of due process.

Full post as published by SCOTUSBLOG on December 04, 2009 (boomark / email).