Federal Judiciary

Judge: No threat, no detention

By Akin Gump Supreme Court Practice Group

A federal judge, explaining her reasons for ordering in March the release of a Guantanamo Bay detainee, ruled that the U.S. government can no longer hold in captivity an individual who does not now pose a threat of terrorist activity.  U.S. District Judge Ellen Segal Huvelle rejected a Justice Department claim that it can continue to hold detainees as long as the “war on terrorism” goes on overseas, whether or not a given individual poses a threat of returning to a battlefield.

The judge’s 11-page opinion, cleared Wednesday for release in redacted form but actually made public only on Friday, can be found here.

The decision involves one of the most controversial detainees still at Guantanamo — Yasin Muhammed Basardh, a 33-year-old Yemeni who has repeatedly made accusations against other detainees and has cooperated extensively with U.S.  military officials in deciding whether to hold other detainees.  Those activities, Judge Huvelle noted, have led to repeated physical attacks and even death threats from other prisoners.

The judge, however, did not order Basardh’s release as a reward for his cooperation, although she did say that the Pentagon may have violated at least the spirit of U.S. laws by not fulfilling promises it had made that his cooperation could improve his situation and perhaps even lead to his release.

Rather, her release order, originally issued without explanation on March 31 (see this earlier post), was based upon her legal conclusion that detention authority stops when the government has decided that an individual is not likely to return to a battlefield or to activity with the terrorist networks of the Taliban or Al Qaeda.   That was her interpretation of the resolution Congress passed to allow the U.S. to respond to the terrorist attacks of Sept. 11, 2001 — the Authorization for the Use of Military Force.

Although Huvelle ordered Basardh released “forthwith,” the order actually only directed that the government “take all necessary and appropriate diplomatic steps to facilitate” his release.  She said she had no power, because of a recent D.C. Circuit Court ruling, to order Basardh’s release into the U.S. or to order his transfer to “a safe haven.”

The order noted (with deletions to protect secret information) the history of Basardh’s cooperation with Guantanamo authorities, and the enmity that his activities had brought him.  His activities, she said, are “known to the world” now and “thus, any ties with the enemy have been severed, and any realistic risk that he could rejoin the enemy has been foreclosed. As a result, the Executive’s asserted justification for his continued detention lacks a basis in fact as well as in law.”

The basis in law for her opinion was her reading of the 9/11 resolution, the AUMF.  That act of Congress, Huvelle wrote, limits the Executive’s detention authority to the prevention of “future acts of international terrorism against the United States” — emphasis in the original. “It does not authorize unlimited, unreviewable detention,” the ruling said.

She summed up: “The AUMF does not authorize the detention of individuals beyond that which is necessary to prevent those individuals fraom rejoining the battle, and it certainly cannot be read to authorize detention where its purpose can no longer be attained.”

Full post as published by SCOTUSBLOG on April 17, 2009 (boomark / email).