Little headway made at Guantanamo


The lawyers who spent years fighting to free prisoners at Guantanamo Bay thought they had won in 2008, when the Supreme Court gave detainees a right to go to court and Barack Obama was elected president. But things haven’t worked out as they had hoped.

Last month, President Obama reversed a campaign promise and announced plans to keep prisoners at Guantanamo indefinitely. Congress has blocked moving any prisoners from the Cuba detention center to this country, even for a trial. And the high court’s decision in June 2008 has been rendered all but meaningless because appellate judges ruled these prisoners held without trial had no right to be released.

And now, after the retirement of Justice John Paul Stevens, a series of new appeals seeking the attention of the Supreme Court as soon as Monday may be doomed. It takes five votes to have a majority, and because Justice Elena Kagan has recused herself from these cases, the liberal bloc is not likely to find a fifth vote.


“All three branches of the government are now arrayed against us,” said attorney David Remes.

The lawyers who looked to the courts to bring justice to Guantanamo detainees are frustrated that the door leading to freedom proved an illusion.

“There is no judicial remedy” for wrongly held prisoners, said Sabin Willett, a Boston lawyer. It’s “been cut off at the knees.”

He represented 17 Chinese Muslims, or Uighurs, who had fled China and were captured in Afghanistan and sent to Guantanamo. These men were among the first to win rulings from the judges who decided they were not “enemy combatants,” and therefore should not be held at Guantanamo.

But when a judge ordered their release, the U.S. Court of Appeals for the District of Columbia intervened and blocked the order. It declared the “exclusive power” to release such prisoners rests with the government, not judges.

Since then, several of the Uighurs have agreed to be relocated to out-of-the-way places like the Pacific island of Palau, but five of them remain in limbo at Guantanamo.


The lawyers urged the Supreme Court to take up the issue again and to rule that the prisoners had a right to go free. The justices could act on the appeal Monday.

But the Obama administration, just like the Bush administration, urged the court to dismiss the appeal.

The Bush administration established the Guantanamo prison in 2002 to hold and interrogate foreigners who were captured in the fight against Al Qaeda and the Taliban. Its lawyers believed the offshore prison was out of reach of the U.S. courts.

Civil liberties advocates spent six years arguing that U.S. law should apply there. Their efforts culminated in the high court’s 2008 ruling in Boumediene vs. Bush, which, by a 5-4 vote, held that because the Guantanamo base was under total U.S. control, the prisoners there had a constitutional right to habeas corpus, a hearing before a judge.

But this decision only opened the door into court for detainees. The justices left much undecided, including the legal rules for determining who was an enemy combatant. The high court also did not say that judges could order the release of prisoners.

Moreover, these follow-up decisions were left in the hands of the conservative-leaning D.C. appeals court.

“The practical impact [of the Supreme Court’s ruling] has not been very significant,” said Columbia law professor Matthew Waxman, who worked in the Bush administration. Many saw the decision “as a step toward judicial dismantling of Guantanamo, but it wasn’t. And to the surprise of many Guantanamo critics, all three branches of the U.S. government now stand behind the idea that the president has legal authority to hold many detainees there without trial.”

But despite the setbacks in court, prisoners continue to leave Guantanamo. More than 500 were released and sent abroad during the Bush years. When Obama took over, 242 remained. Since then, 67 more have been transferred to other countries, and two have died.

More than half of those who remain are Yemenis, and the administration says it will not release them because of the “unsettled situation” in their homeland.