Judicial Authority to Order Release of Guantanamo Detainees

On October 7, 2008 Federal District Judge Ricardo M. Urbina, a Clinton appointee, ordered the transfer of 17 detainees held at the Guantanamo Bay detention center to the United States mainland for their immediate release. The decision marked the first time since 2001 that the judicial branch explicitly and aggressively challenged the President’s authority to detain individuals at Guantanamo bay by directly ordering the release of specific prisoners. The 17 men were Uighurs, a Chinese Muslim minority, captured in Afghanistan in 2001 following the US invasion. This assertion of judicial power was short lived however, as within 24 hours the D.C. Circuit Court instituted a temporary stay on Judge Urbina’s order. On October 20th the Circuit Court officially postponed the transfer of the detainees until at least November.

The U.S. government no longer classifies the 17 Uighurs as enemy combatants, nonetheless the DOJ still considers the detainees to be “dangerous” and argues the court lacks the authority to order the release of any detainees into the United States. This dispute gets to the heart of the next big issue the Supreme Court is going to have to face in the detention area. Up to this point, court precedent has focused solely on the federal court’s jurisdiction to hear habeas petitions brought by Guantanamo Bay detainees, and the protective procedures due to those detainees via the Combatant Status Review Tribunal and Military Commissions process. (See Rasul, Hamdi, Boumediene). The Uighurs case sets up a clash in which the court may have to weigh the President’s authority to hold terrorist suspects, including those not designated as enemy combatants, with the court’s authority to order an actual release.

Posted by Todd Garvey