Back in US History, did you ever hear the Andrew Jackson quote, “John Marshall has
made his decision, now let him enforce it!” Whether or not the quote was
actually stated is often disputed by scholars, but the quote is derived from Jackson’s reaction to the 1832 Supreme
Court case Worcester v. Georgia. The general idea, though, about the
competing roles and powers of each branch of government, is manifesting itself
in the decision announced yesterday by the Supreme Court, that in 2010 it will
take a case on whether or not federal judges have the power to order the
release of prisoners from Guantanamo that have been proven to pose no terrorist
threat.
The case,
Kiyemba v. Obama, concerns a group of Chinese Muslims, the Uighars. The NYT reports that “The appeal from the Uighurs has been
pending in the Supreme Court since April, and it is not clear why the court
acted on it now. The Obama administration has sent four of the Uighur prisoners
to Bermuda, and Palau has said that it will accept most of the rest. But at
least one prisoner apparently has nowhere to go.” The Washington Post
reports that this final detainee, “Arkin
Mahmud, has found no country willing to take him because of his severe mental health
problems, and his brother has refused to leave without him.”
But
the case is broader
than the Uighars. The Supreme Court will be presiding over the power of federal
courts to order the release of prisoners from Guantanamo who, like the Uighars, have been
determined to pose no threat. “Last
year, the court ruled 5 to 4 that a Guantanamo detainee had the right to prove
to a federal judge that he was being unlawfully held as an enemy combatant. The
current case is a logical next step, determining what powers a judge has to
release such a person, especially when sending him back to his home country is
not an option,” reports the Washington Post.
Unfortunately,
the Obama administration does not seem to agree that the Supreme Court should deliberate the judicial branch’s own powers here, or that the court should ultimately grant itself the
powers made by a lower federal court. The Obama Administration’s
Solicitor General wrote a letter to the court last month “essentially
asking for more time, saying the government was close to a solution” . The New York Times reports that “In
urging the Supreme Court not to hear the new case, the Justice Department said
the Uighurs were 'free to leave Guantánamo Bay to go to any country that is
willing to accept them, and in the meantime, they are housed in facilities
separate from those for enemy combatants under the least restrictive conditions
practicable.'”
The
Executive Branch is not the only one flexing its muscle and authority over Guantanamo detainees. The
Washington Post writes that “The
Obama administration, like the Bush administration, says decisions about
releasing detainees are reserved for the executive branch. And both the
executive branch and Congress have said that decisions about whether detainees
may be shipped to the United States, if there is no other place for them, are
reserved for the political branches.” Just today, Congress passed a bill
that would allow the government to transfer Guantanamo detainees to the US, “but only to face
trial”, and “does not allow those convicted to be imprisoned in the US nor
permit those cleared to stay.”
So while
the Executive and Legislative branches purport they are the only bodies
entitled to make these decisions (while they stall on making those decisions or
fulfilling Obama’s committment to close Gitmo), the Court’s decision to hear the case next
year indicates that not only is it entitled to deliberate over whether federal
judges can make the decision to release detainees, but the decision
also indicates that due process and habeas corpus may finally be restored by the
release of the detainees at Guantanamo who are proven not to be “enemy combatants”,
regardless of which branch the order originates from.
The involvement of the Supreme Court to assist in the steps close Guantanamo underscores the urgency of restoring due process and habeas corpus. The ACLU has been working for years on this issue, and hopefully the Obama Administration will make the involvement of the Supreme Court unnecessary by closing Guantanamo before the case hits the Court in 2010. Learn more about the ACLU's Safe & Free program here.