WASHINGTON — The Supreme Court’s decision Tuesday to weigh
whether a federal judge has the power to release Guantanamo Bay prisoners into
the United States continues a legal tug of war begun when the Bush
administration opened the overseas detention camp.
While President Barack Obama is trying to close Guantanamo’s
detention facility, he largely shares Bush’s views about the deference owed a
president. The latest case could further clarify this wartime balance of power.
“It’s really important that the Supreme Court step in
now,” said Elizabeth Goitein, the director of the Brennan Center for
Justice’s Liberty and National Security Project. “This is an issue that’s
likely to keep arising.”
In the closely watched case involving 17 Muslim Uighurs
detained starting in 2002, the high court once more will consider how far
traditional U.S. constitutional protections extend to the Guantanamo detainees.
A narrowly divided court in the 2008 Boumediene v. Bush case
previously determined that detainees could file habeas corpus petitions
challenging their indefinite detention. This time, the court will take the next
step, considering whether a judicial remedy might include setting them free
within the United States.
“Courts must have the power to compel release in order
for successful challenges to unlawful detention to have any meaning,” said
Sharon Bradford Franklin, senior counsel for the Constitution Project, a
bipartisan legal organization that filed a friend of the court brief in the
Uighurs are described as Turkic Muslims from an isolated
region in western China. They say the Chinese government represses them, while
the Chinese government says it fears an Islamic separatist movement.
In the case called Kiyemba v. United States, 17 Uighurs
captured in Pakistan or Afghanistan were held at Guantanamo starting in 2002,
even though American officials ultimately determined they weren’t a threat to
the United States. Officials also argued, however, that they could not release
the Uighurs safely because they would be at risk if returned to China.
Currently, the Uighurs remaining at Guantanamo live in what
the Obama administration calls a “special communal housing” unit,
which includes a stereo system, sports equipment and other amenities not
available to other detainees.
A federal trial judge in Washington, nonetheless voicing
dismay at the Uighurs’ plight, ordered their release last year into the United
“The carte blanche authority the political branches
purportedly wield over (the Uighurs) is not in keeping with our system of
governance,” U.S. District Judge Ricardo Urbina declared.
An appellate court blocked that decision, and in the
meantime members of Congress have agitated against relocating foreign detainees
within U.S. territory.
“There are some enormous political problems with
releasing the Guantanamo detainees into the United States now,” Goitein
said, although in the case of the Uighurs, “it is what the law and
The Obama administration wanted the Supreme Court to
sidestep the issue, with Solicitor General Elena Kagan advising the court that
the island nation of Palau has agreed to accept a dozen of the Uighurs. The
case eventually could become moot if all the detainees find a home outside of
Guantanamo, though that would still leave core questions unanswered.
In particular, the Obama administration argues that a
federal judge lacks the authority to make what amounts to an immigration policy
“The power to exclude aliens is ‘inherent in
sovereignty,’ and the power to decide which aliens may enter the United States,
and on what terms, rests exclusively in the political branches,” Kagan
argued in a legal brief.
Justice Anthony Kennedy wrote the decision in Boumediene and
will likely again be a swing vote. In the year since Boumediene was decided,
Justice Sonia Sotomayor has replaced Justice David Souter on the court. She has
not yet had time to fully reveal her views on national security matters.
There are currently 221 detainees at Guantanamo, including
13 Uighurs. Four other Uighurs have been moved to Bermuda, where they are guest