Obama Guantanamo policy may get Supreme Court test

[darrels joy]

Obama Guantanamo policy may get Supreme Court test
Apr 6, 2009

WASHINGTON (AFP) — For the first time since taking office, President Barack Obama will see his Guantanamo policy tested before the US Supreme Court after 14 Chinese Uighurs detained without charge lodged a petition for their release.

The nine justices will decide this summer whether to hear the case that was filed Monday by the men asking the country's high court to lift a bar imposed on their release by a federal court of appeals.

The 14, members of the predominantly Muslim and Turkic-speaking Uighur minority who were captured in Afghanistan in late 2001, have been cleared of accusations that they were "enemy combatants," but legal wrangling over their fate continues.

The case has become a major political headache for the Obama administration, which has sought to avoid a major diplomatic bust-up with China at the same time as unpicking detention policies of the preceding administration of president George W. Bush.

Should the court opt to hear the case it could find itself embroiled in the establishment of new rules governing the detention of terror suspects, analysts say.

"What is at stake, ultimately, could be the fate of many if not most of the more than 240 prisoners still at Guantanamo, who might have to remain confined there or somewhere else even if the government decides that they are not dangerous enemies," said Lyle Denniston, founder of the Scotus blog which follows and discusses Supreme Court cases.

Although Obama has launched a wide-ranging review of policy on Guantanamo, individual cases have been moving through the court system ahead of its completion, including the Uighur case.

In October, federal judge Ricardo Urbina ordered the release of 17 Uighurs to US soil, but in February that decision was overturned.

Three men have since asked lawyers not to continue their case.

A court of appeal had ruled the executive branch was the only body with the power to release the men, who are challenging their detention through a Habeas Corpus writ.

Now the Supreme Court has been asked to rule on whether a federal court can order the release of the prisoners in the United States.

"The question presented here is whether the third branch may check the second at all," the Uighurs' lawyers argued in Monday's petition.

"If Habeas (Corpus) review may be shelved because one president may some day undo what his predecessor did, then the law is whatever the sitting president says it is, and the judiciary is the handmaiden of the political branch," they said.

Susan Baker Manning, a lawyer for the group, told AFP that the appeals court opinion is "directly defiant of the Supreme Court case law on Guantanamo.

"The Supreme Court made it crystal clear that you have habeas if you are in Guantanamo," said Baker Manning, adding that the group remained "hopeful" it could get a hearing by autumn.

The Defense Department and the State Department have tried unsuccessfully for several years to arrange the transfer of the Uighurs to a third country, saying they face the risk of persecution if they return to China.

The Obama administration has said it "cannot imagine" sending the inmates back to China.

Beijing regards the men as "Chinese terrorists."

Baker Manning said a diplomatic solution could be found "for the vast majority" of Guantanamo detainees, but that the case of the Uighurs is "highly political."

"China made clear to any country in the world that it would not be in their interest to take these men," she said. "China has enormous diplomatic pressure on all other countries."

Should the court reverse the lower court's February decision and order the Uighurs freed, a US source speaking on the condition of anonymity said there was a possibility that they could be released in the US capital.

"This is now President Obama's Guantanamo," said Emi McLean, an attorney at the Center for Constitutional Rights, evoking US courts' repudiation of Bush's policy on the "war on terror" detention center three times in recent years.

"If (Obama) is truly committed to closing the detention center, these men should be on a plane to restart their lives in the United States."

The Uighurs were living in a self-contained camp in Afghanistan when a US-led bombing campaign began in October 2001, a month after the deadly September 11 attacks in the United States.

They fled to the mountains, but were turned over to Pakistani authorities, who then handed them over to the United States.

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[darrels joy]

LONDON (AP) - The United States is "relatively close" to making decisions on what to do with an initial group of Guantanamo Bay detainees, U.S. Attorney General Eric Holder said Sunday.


Holder spoke to The Associated Press during a flight to London, the first of several stops where he will visit with European leaders to discuss terrorism, drugs, and cyber-crime.
The attorney general did not say how much longer he thought it would take to close the Guantanamo Bay detention facility in Cuba. Before officials can meet President Barack Obama's January deadline, the U.S. must first decide which detainees to put on trial and which to release to the U.S. or other countries.


Holder said the first step is to decide how many total detainees will be set free.

"We're doing these all on a rolling basis," he said. "I think we're probably relatively close to making some calls."

The attorney general has called the Guantanamo work the toughest part of his job.

After eight years in which the previous Bush administration alienated European nations over issues like the Iraq war and Guantanamo Bay, the Obama administration is trying to strengthen those ties.

"I don't think they're looking for as much of American leadership as a partnership," said Holder.

After arriving in London on Sunday night, the attorney general and his staffers took a tour of the Tower of London—home of The Bloody Tower, a historic torture site.

The tower visit is standard fare for tourists, but one loaded with extra meaning for Holder, who listened quietly to tales of torture, execution and palace intrigue.

The Obama administration is edging toward taking some Guantanamo prisoners to the U.S., most likely to Virginia. They are Chinese Muslims known as Uighurs, and their supporters say they never should have been at Guantanamo in the first place.

Republicans in Congress say Guantanamo should remain in operation and are mobilizing to fight the release of detainees into the United States.

Against that backdrop, Holder hoped to reassure skeptical Europeans without generating too much public opposition back home. After meetings in London and Prague, the attorney general is to give a speech Wednesday night in Berlin about Guantanamo.

Austria's interior minister, Maria Fekter, has insisted her country would not take any prisoners. "If the detainees are no longer dangerous, why don't they stay in the U.S.?" she asked.

Simon Koschut, an associate fellow with the German Council on Foreign Relations in Berlin, spoke of the difficulty facing Holder in trying to find a consensus among European leaders.

"In Germany, many are asking why America isn't taking care of its own business. If you started it, you ought to finish it," Koschut said.

There are about 240 Guantanamo inmates. As many as 60, if freed, cannot go back to their homelands because they could face abuse, imprisonment or death. They are from Azerbaijan, Algeria, Afghanistan, Chad, China, Saudi Arabia and Yemen.

Several European nations, including Portugal and Lithuania, have said they will consider taking such detainees. Others are less interested and don't want their neighbors to accept any prisoners either, because of the ease of travel within the European Union.

In some nations are internal divisions. Germany's foreign minister, Frank-Walter Steinmeier, has raised the possibility his country could take detainees, arguing that the camp's closure should not fail because the prisoners have nowhere to go. But Interior Minister Wolfgang Schaeuble has said the detainees are primarily a U.S. responsibility.

Given that debate, that's all the more reason, say some, for the U.S. to release some Guantanamo prisoners in the U.S. as quickly as possible to generate good will.

Currently, there are 17 Uighurs held at Guantanamo. In recent weeks, officials reinterviewed each of them in preparation for their eventual transfer. The government has cleared them for release, but insists it will not hand them over to China because the Uighurs fear they will be tortured.

The Uighurs were captured in Pakistan and Afghanistan in 2001. Uighurs are from Xinjiang, an isolated region that borders Afghanistan, Pakistan and six Central Asian nations. They say they have been repressed by the Chinese government. China has said that insurgents are leading an Islamic separatist movement.

Any country that takes them is likely to anger Beijing.

"No one else is going to do it. No one else is going to take that heat when they didn't create the problem. So we have to do it," said Sabin Willet, a lawyer for the Uighurs. "They need to unlock the door soon."

Some Republicans, though, want to keep the doors bolted.
"There is reason to believe (the Uighurs) are not as peaceful or as nonthreatening as the administration seems to be suggesting," said New York Rep. Peter King, the top Republican on the House Homeland Security Committee.

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