Guantanamo Prisoners: Cleared for Release, But...
NEW YORK - Since the U.S. Supreme Court ruled last year that inmates at Guantanamo Bay have a right to go to federal court to challenge their detention, detainees have filed more than 150 such lawsuits.
Thirty-five of these cases have now been completed. And of these, federal judges have ruled that 29 prisoners are being unlawfully detained.
The growing caseload of habeas corpus petitions has been seen as a contest between executive authority and judicial independence.
While judges may find in favour of detainees and order them released - the usual remedy for habeas petitions - they are apparently powerless to enforce their rulings. As a result, 20 of the 29 prisoners ordered released are still at Gitmo.
The high percentage of prisoners who have "won" their habeas corpus appeals has surprised many observers, who may have anticipated that Gitmo detainees would be, as former Defence Secretary Donald Rumsfeld put it, "the worst of the worst".
In those cases where prisoners have been successful in their appeals, the court has repeatedly found that the government has not been able to prove its allegations. In some cases, the government's evidence was excluded by the judge because it was obtained through torture or unreliable hearsay.
Three weeks ago, one angry judge lambasted the seven-year detention of a Kuwaiti citizen. She said the government's case was built on "speculation".
In June, another federal judge said by the time of the 2002 arrest of a Syrian detainee, the prisoner been tortured by al Qaeda and incarcerated for a year and a half in a Taliban prison.
In May, a judge found that the evidence against one detainee contained second-and third-hand hearsay and allegations that it was obtained by torture.
In an another case, the judge directed that President Barack Obama "promptly release" a young Afghan, Mohammed Jawad, who was reportedly 12 to 14 years old when he was captured. Jawad's detention stemmed largely from a confession that was rejected by a military judge because it was obtained through threats of death.
But before Jawad could be sent back to Afghanistan, the president had to submit classified details to Congress. The Obama administration appears to be having somewhat more success than its predecessor in relocating Guantanamo detainees - in June, three detainees were sent to Saudi Arabia, one home to Chad and another to Iraq. But those who have been cleared for release but still remain on the Caribbean island have no place to go.
More than 100 of these detainees are from Yemen. Many of them could be released immediately, but the U.S. government is not certain that Yemen can provide enough security to prevent them from becoming allied with al Qaeda, which is said to be active there.
Of the approximately 550 prisoners released from Guantanamo by the George W. Bush administration, only 14 were from Yemen.
Since April, several Yemeni prisoners have been successful in federal court. While the judges in these cases have ordered their release, the Obama administration has failed to comply with these rulings, even though the government has not demonstrated that the prisoners constitute a security risk.
Two Yemeni prisoners have reportedly committed suicide.
Other prisoners have not yet been released because they might face repression if returned to their home country. The Uighurs - Chinese Muslims - are examples.
Last October, a federal district judge ordered the government to release 17 Uighurs into the U.S. But that decision was blocked by an appeals court, which ruled that entry into the U.S. was immigration matter that was the responsibility of the executive branch of government, not the courts.
I June, four Uighurs were resettled in Bermuda. But lawyers for the remaining 13 have asked the Supreme Court to hear their case. But meanwhile, the 13 are still imprisoned.
Adding to the administration's problems are the strong anti-detainee sentiments expressed by members of both parties in Congress. Outspokenly opposed to releasing any detainee into the U.S., Congress passed a law requiring the president to submit a report to legislators before using taxpayer funds to release or transfer any Guantanamo detainee.
Two issues remain unclear. The first is whether the executive branch's inability to release prisoners will have lasting effect on the courts.
The second is the possibility that Congress will delay a court-ordered detainee release, thus opening the way to a suit by the detainee, who may claim that such a delay is unconstitutional because it violates the separation of powers among the judicial, legislative, and executive branches of government.
This tug of war over the habeas issue is likely to have consequences well beyond Guantanamo. For example, people detained for years at the U.S. air base at Bagram, Afghanistan, are also claiming the right of habeas corpus. Some 600 prisoners are thought to be at Bagram.
What should judges do when executive branch agencies fail to honor their release orders? Legal experts have a wide range of views.
Francis Boyle, a professor at the University of Illinois law school, told IPS, "Federal judges will have to begin to assert themselves against these unconstitutional excesses and atrocities."
Professor Benjamin Davis of the University of Toledo law school, believes the courts should "examine if contempt of court - civil or criminal - can be brought."
Chip Pitts, a lecturer at Stanford Law School and president of the Bill of Rights Defence Committee, believes that "some judges have cut the administration far too much slack in not insisting on prompt release and compliance with court orders"
But, he adds, the administration "has embraced a flawed paradigm, resisted court orders, and encouraged continuing judicial laxity, instead of restoring venerable and universal standards of law that insist on neutral, objective principles as a framework for discovering and promptly acting on evidentiary facts."
And Air Force Major David Frakt, defence counsel with the Office of Military Commissions which administers the tribunals at Guantanamo, believes "the judges can and should do more".
He told IPS, "They should order that until such time as the U.S. finds a permanent home, releasable detainees must be freed - at Guantanamo."
"It is simply unacceptable that once it is determined, or even conceded by the U.S. government, that there is no lawful basis to detain an individual, that they are still held in prison. The fact that the conditions in the prisons for those eligible for release are less onerous than they are for other detainees is irrelevant. Illegal detention is illegal detention and prison is prison," he said.
Frakt, who has represented a number of Guantanamo detainees including Mohammed Jawad, believes the result will be that "allowing former detainees, even completely innocent ones, to mingle with U.S. forces and their families on Guantanamo Bay Naval Station would be deemed so unacceptable that this would create the impetus for the administration to come up with a solution."