Senate Approves Transfer of Guantanamo Detainees for Trial; Supreme Court Grants Certiorari in Kiyemba v. Obama

By NSJ Staff Writer

The Obama Administration is one step closer to achieving its goal of closing the detention facility at Guantanamo Bay by January 22, 2010. On Tuesday, October 20, 2009, the Senate, by a vote of 79 to 19, passed the $44.1 billion budget for the Department of Homeland Security, which includes a provision that would permit the continued transfer of Guantanamo detainees to U.S. soil for prosecution. Before transfer, the executive branch would have to conduct a risk assessment of each detainee and notify Congress of its transfer decision. If cleared, the detainees would not be permitted to stay in the United States. Having already been passed by the House, the bill will now be sent to President Obama, who is expected to sign it into law. Senators opposing the bill voiced concern that providing detainees with the procedural safeguards afforded by U.S. courts could backfire, especially, according to Sen. Saxby Chamblis (R-Ga.), given that the detainees are “foreign nationals who were captured outside the United States during a time of war.” The dissenting voices, however, were effectively silenced by the overwhelming majority.

The bill passed by the Senate also endorses another key policy objective of the Obama Administration: preventing the release of photos that allegedly depict American personnel abusing detainees abroad. Though the American Civil Liberties Union successfully obtained their release as part of a Freedom of Information Act lawsuit, the Justice Department has filed a petition for certiorari before the Supreme Court to challenge the federal appeals court’s order. The Senate bill would effectively trump the court’s ruling in favor of the government.

The Senate’s action came only hours after the Supreme Court, over the objections of the Obama Administration, agreed to hear a case — Kiyemba v. Obama, 561 F.3d 509, cert. granted, 77 U.S.L.W. 3577 (U.S. Oct. 20, 2009) (08-1234) — involving the question of whether U.S. judges have the power to release Guantanamo detainees cleared of all charges onto U.S. soil. The Court of Appeals for the District of Columbia had ruled that only the legislative and executive branches had the authority to admit foreigners into the country. The detainees involved in this case — 17 Uighurs deemed by the Bush Administration not to be enemy combatants — had been captured in Afghanistan and Pakistan in 2001 but have not been returned to China for fear they would face persecution. The Obama Administration has argued that it needs more time to seek alternative solutions to releasing them into the United States: it has already sent 4 of the Uighurs to Bermuda and secured relocation for 6 to Palau. Palau has offered to accept 6 of the remaining 7 as well.

For more information on the Senate’s recent action, see articles in the Washington Post and the BBC. To see more regarding the ACLU’s Freedom of Information Act case, see here and here. For more information about Kiyemba v. Obama, see the article in the Washington Post and the opinion by the D.C. Circuit.