All hands (or branches of government) on deck for Guantanamo

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.