Detainees look to high court to cut GITMO transfers bans

In an upcoming Supreme Court case, lawyers for Guantánamo Bay detainees will challenge congressional language blocking the detainees’ release to the United States.

Lawyers for the 17 Chinese Muslims, known as Uighurs, argue that provisions in the Homeland Security appropriations bill, Interior and Environment appropriations bill and defense authorization bill prohibiting Uighurs’ release are unconstitutional.

President Barack Obama signed the three bills into law last month.

“To the extent that those regulations would bar resettlement in the United States, they would be unconstitutional,” said Wells Dixon, a senior staff attorney for the Center for Constitutional Rights and a lawyer for some of the Uighurs. “We would challenge them as unconstitutional.”

In the case of Kiyemba et al v. Obama et al, the high court will consider whether a federal judge can order the resettlement of Uighurs now detained at Guantánamo Bay. A federal court ordered the release of the Uighurs, who haven’t been charged with crimes during a seven-year-long detention at Guantánamo Bay.

An appellate court later reversed the decision.

Last year, the Supreme Court said the detainees had the ability to challenge their detentions under habeas corpus rights in the Constitution.

Now the Uighurs and civil rights groups are asking the high court to go a step further by allowing courts to order detainees released when they’re being held illegally, a power that should be allowed under the writ of habeas corpus, legal backers of the Uighurs said.

“The problem now is that the detainees are winning their habeas petitions but are remaining behind bars at Guantánamo even though the courts have said that the government has no lawful reason to be holding any of them,” said Christopher Anders, senior legislative counsel for the American Civil Liberties Union.

In 2002 the Uighurs were captured in the Afghanistan war and transferred to Guantánamo Bay. U.S. officials have said the Uighurs don’t pose a threat to the United States, but the Uighurs have clashed with the Chinese government. Chinese officials said the Uighurs are part of a separatist movement, but Muslims have argued that the government has repressed them because of their religion.

The Uighurs’ Supreme Court case sets up a clash between two constitutional rights, habeas corpus and Congress’s power of the purse, said Lyle Denniston, a veteran Supreme Court reporter who now writes on SCOTUSblog.

The detainees’ lawyers will argue that “there is no way that Congress can take away from the courts the authority to impose a remedy for a constitutional violation,” Denniston said.

Congress is seeking to block detainees’ release through spending bill provisions. The bills include language banning the use of federal funds for the release, resettlement or transfer of detainees to the United States. The Interior Department appropriations bill allows the transfer of the detainees to the United States, but only for prosecution.

The Uighurs’ lawyers hope the Supreme Court will find the spending bill provisions unconstitutional, which would effectively nullify them.

Republicans inserted the provisions in the appropriations bills and won the support of centrist Democrats in test votes on the House floor.

Rep. Lamar Smith (Texas), the senior Republican on the House Judiciary Committee, said that Congress has the power to pass laws protecting the American people, including laws that prohibit terrorists detained at Guantánamo Bay from entering the country.

“No one who has trained at terrorist training camps has the right to come to the U.S. and possibly endanger American lives,” Smith said in a statement.

“The Supreme Court should reaffirm Congress’s constitutional authority to prevent terrorists from entering the U.S.,” he added.

House Democratic leaders opposed the provisions.

House Appropriations Committee Chairman David Obey (D-Wis.) argued against attaching riders to spending bills that create new policies. Last summer, Obey noted that a $106 billion war supplemental bill funding military operations in Iraq and Afghanistan was delayed for weeks after Republicans sought to attach language restricting the closure of the Guantánamo Bay prison, which the Obama administration has vowed to do.

“Do you want these bills to pass or not?” Obey asked. “If you do, you’ll stop pretending we are a second authorizing committee.”

The Obama administration has opposed allowing courts to have the power to release the detainees, arguing in a court brief that only “the political branches,” Congress and the executive, can decide whether detainees can enter the United States.

Other pending spending bills, including the appropriations bill for the Pentagon, also include provisions blocking detainee transfers, but Dixon, the Uighurs’ lawyer, said it’s unclear whether they actually prohibit the detainees’ release into the United States.