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December 23, 2005


The wingnuts will shortly tell us that this is a losing cause for Democrats to worry about.

Scary brown people just have to be imprisoned.

As for no legal remedy, how about an order for release and contempt citations if not obeyed? Let the Executive branch under pain of contempt figure out what method of release should be adopted. This judge lacks imagination.

An administration that cared would also bring conspiracy and fraud charges against the bounty hunters.

Instead, we've got an Andrew Jackson moment.

Would it bring those charges in the courts of Afghanistan? I don't think US courts would have jurisdiction.

I admit to not knowing much about how the jurisdiction would work out, but surely there's something that could be done (given a state that cared, admittedly iffy right now).

I don't understand why he can't order them released and returned to whatever country they came from (essentially, deported, even though they haven't officially entered the US- judges order that all the time without checking whether the home country will take them back.) Furthermore, to enforce such a decision, judges have all kinds of power- if the executive refuses to comply with his order, he can find them in contempt and issue whatever punishment (fines, probably not jail) appropriate for such contempt.

Well that is just stunning. He goes on for a full page (double spaced) about how habeas is an equitable remedy, the broad discretion given to courts, and its grand purpose "the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty," and all his cites are to Supreme Court cases.

But then, poof, ordering them released would be tantamount to releasing them into the U.S. because the government can't find a country that would take them (apparently assuming they've actually tried), and he can't do that because that's immigration over which the executive has plenary power, "wholly outside the power of [courts] to control."

It wouldn't take much to either say (a) they're effectively already in the U.S. at Guantanomo so the executive has already admitted them (though I haven't read Rasul); or (b) the executive caused this mess, allowing them entry into the U.S. is appropriate; or (c) just say "let them go" and let executive deal with it.

This should be an interesting appeal to watch.

The wingnuts will shortly tell us that this is a losing cause for Democrats to worry about.

Hopefully some of the winguts will wake up and realize that we're not holding just the "baddest of the bad" at Guantanamo, though I won't hold my breath.

Oh, dear heavens. It's not that I didn't already know what we were doing, but that opinion is one of the saddest things I've ever read.

Kleiman gets it (almost) exactly right:

When court of competent jurisdiction finds that an act of the executive branch is illegal, the President, having taken an oath to "faithfully execute" an office whose chief duty is to "take care that the laws be faithfully executed," is oath-bound to order that the illegal activity cease. His failure to do so is grounds for impeachment.

I say almost because I think it would be more proper to wait for an appeal (if any) by the gov't.

"Instead. we've got an Andrew Jackson moment."

We've had many of those moments strung together into one large time block over the past 5 years.

Qassim and al-Hakim can be released after inauguration day 2009, made American citizens by Presidential decree, and appointed to high positions in the Department of Homeland Security. Give them the Texas portfolio, because something will need to be done.

Oh, and, Merry Christmas Uighurs from the freest nation on earth.

Since Judge Robertson has already revealed himself to be on the other side in the War on Terror, the administration's supporters don't even need to bother coming up with tortured responses to the ruling.

I don't buy it. I don't see why the court can't order the feds to produce, in 48 hours, a complete report on their administrative options for releasing the guys, and then order them to comply within 7 days or start getting hit with various sanctions.

I mean, is that worse than a federal district court's taking over a school district? Or exercising any of the other equitable/injunctive powers that federal courts have regularly assumed?

It's like "I hold that James Meredith is legally entitled to attend Ole Miss, but I have no legal authority to require that he be enrolled there."

I think the quandary is not so easy to resolve. The simplest answer would be to return them to Afghanistan -- which hardly seems like a kind place to dump a Chinese national -- or deport them to China, where they face almost certain imprisonment. Neither action would reflect well on the administration.

Is there a Uighur exile community that could take them under its wing?

Yes -- if you read the hearing transcript hilzoy linked earlier, there are Uighur communities at least here and in Sweden.

trostky: I think the quandary is not so easy to resolve. The simplest answer would be to return them to Afghanistan -- which hardly seems like a kind place to dump a Chinese national -- or deport them to China, where they face almost certain imprisonment. Neither action would reflect well on the administration.

The simplest answer would be to admit both of them to US, possibly under some form of surveillance, while the Bush administration ponders how it can possibly make up for having caused two innocent people to be kidnapped and held incommunicado for four years.

But, as the Bush administration has been publicly and openly acknowledged to be above the law, with no penalties or payback for any criminal activity authorized by Bush or his administration, why should they do anything? They know that they have absolute power to do anything they like to these two men, and to all the other prisoners held by the US in Guantanamo Bay and other gulags, and that there is nothing that any court in the US can do to against the power that the administration holds. The Bush administration is not ruled by US law.

The only means of getting a prisoner out of the US gulags is the slow and diplomatic method of international pressure from an ally whose government cares enough about its own citizens to put pressure on the Bush administration, and who has sufficient leverage for the Bush administration to pay attention. There are no longer any British citizens in Guantanamo Bay, aside from the Australian who has recently become a British citizen because his own government won't try to get him out. Though to our eternal shame, there are several people who have the right of residence in the UK still held there.

(trostky? is that creative mispelling, or a typo?)

OBWI lawyers in residence: is there a parallel to recent cases of US immigrants convicted of crimes and then held past the exipiration of their sentences due to their countries of origin refusing repatriation? Hasn't something like this happened with vietnamese immigrants in recent years? I apologize for asking without exhaustively searching Google beforehand. . .

OK - the 1996 Illegal Immigration Reform & Responsibility Act (IIRARA) permitted INS (now part of HSA) to detain persons illegally in the United States indefinitely, apparently even after INS determines there is no way to remove the person from the US.

Provisions of the IIRARA were amended or affected by the PATRIOT Act (i.e., expedited implementation of upgrading entry and exit data systems and tracking foreign students), but I don't know if the PATRIOT Act had any effect on HSA's authority to indefinitely detain immigrants who have committed a crime.

Of course, here, (1) there's no finding that the persons at issue committed crimes (right?) and (2) they apparently not "immigrants" (that is, they are not "in the United States").

So maybe there's no parallel. Never mind.

Anderson, I think the jurisdictional element is slightly trickier here than in the Meredith case because of the military base. Aside from that, your proposal makes prudential sense. That doesn't mean that it is 'legal' of course...

Though to our eternal shame

You're not alone in this. Germany has one that I know of, and there are undoubtedly several others. I presume you're talking about the Libyan refugee: if so, I think the shame that attends the people who have been threatening to return him to Libya, laughing about how he'll be killed and/or abused -- and they are not Brits -- far exceeds the shame on the people who've done less than they might have.

That is, Jes, our shame is greater than yours by a good long measure, even when just talking about a single prisoner.

That is, Jes, our shame is greater than yours by a good long measure, even when just talking about a single prisoner.

I don't feel responsible for what the US government does, though.

I do feel responsible when the Home Secretary tells Bisher Al-Rawi's family - most of whom are British citizens - that because Bisher Al-Rawi is an Iraqi citizen with right to remain in the UK, they shouldn't apply to the UK government for help in getting him out of Guantanamo Bay, they should apply to the Iraqi government. In November 2002, the only effective Iraqi government Bisher Al-Rawi's family could have applied to was, in fact, the US military occupation. That was either a monstrous piece of irony or pure stupidity - or just blindheaded we-don't-care-and-you-can't-make-us-care. (And to tell Jamil Al-Banna's family that they should apply to the Jordanian government, when Jamil Al-Banna was resident in the UK because he sought asylum from Jordan, was, while less ironic, just as stupid and blindheaded.) It is shameful that our government should have responded in this way to people who are legally resident in the UK or granted British protection as asylum seekers.

It is also shameful that we may have collaborated with the US on the CIA's "rendition flights". And it's worse than shameful - it's scary - that the then-Home Secretary defended changing the law of extradition to make it more easy for the US to extract suspects from the UK, after several British judges were digging their heels in and refusing to hand over people just because the CIA said they wanted them.

Sure, the US was the active instigator of evil in this instance - but cooperation with such monstrosity is shameful in itself.

And it's worse than shameful - it's scary -

God, I am typing this too late at night. (Taking a short break from doing Christmas baking - chewy chocolate gingerbread cookies, fruit loaf, and cranberry-orange loaf - and contemplating doing a batch of mince pies before I actually fall asleep.)

I do not actually think that it's worse to be scared than be ashamed: I've experienced both.

When the UK government amended our law of extradition so that in theory at least, all the CIA has to do is say "We want that guy, here's our ID for him" and a British court is supposed to hand him over, no awkward questions about evidence asked - that is shameful, and it's also quite, quite scary.

Back to the Christmas coalface.

"I don't feel responsible for what the US government does, though."

I guess the whole people having the ultimate sovereignty thing is just totally tripe.

Seriously, I understand the sentiment. I don't feel too "responsible" either, but that might sort of be part of the reason why this has been going on so long.

"Horrible simply horrible. Not our responsibility ... heck, we didn't even vote for these guys ... but simply horrible."

I think the last post missed something important about the original poster, but if you address it to someone else other than the person I quoted (many more appropriate people think the same thing), I think it holds true.

I guess the whole people having the ultimate sovereignty thing is just totally tripe.

Either that, or British people stopped having ultimate sovereignty in 1776.

OT but related: Charley, what is the impact of the Graham amendment's passage on your case? Is it the end? Or is there any kind of 'grandfathering' for cases underway before passage?

Will you continue to have access to your clients only as long as their case is in court?

And, Jes: In November 2002, the only effective Iraqi government Bisher Al-Rawi's family could have applied to was, in fact, the US military occupation.

November 2003, yes? I make allowances for Christmas-baking-induced exhaustion. Chewy gingerbread.... mmmmmmhmm.

Nell: No effect, for the reasons explained by the provision's author Sen. Carl Levin. Sens. Durbin and Kennedy gave floor statements discussing this as well, and no one argued to the contrary.

The effect is on new cases.

This is some of the sickest authoritarian, 1984, Darkness At Noon, police state crap I've ever read. TO THE BARRICADES!

For our children, for posterity, for those denied justice today who rely on others to speak out for them...


Nell, to be fair (not that its my job) Sens Graham and Kyl think the bill would require that all the pending cases be transferred from the district court in DC to the DC Circuit, with leave to re-plead the grounds for challenge made available in GLK itself.

This amounts to trading our Geneva Convention and constitutional claims for a claim about whether the DOD followed its own procedures. Unresolved is whether evidence obtained under torture -- which was admitted under the old procedures, and is not admissible under the new law -- is to be taken into account in this DC Circuit review. Obviously, if the Circuit thinks that (a) the rejection of evidence under torture in GLK; (b) the President's and Secretary of States's consistent statements about how torture is abhorrent; and (c) centuries of tradition that evidence obtained under torture may not be admitted in any proceeding in a civilized court following the Anglo-American tradition, taken together, means that in whatever review they undertake, they cannot take evidence obtained under torture into consideration, then a whole lot of DOD drumhead trials are going to have to be re-done under the old rules. If, on the other hand, the Circuit decides that neither its honor, nor that of American law requires that it do anything other than rubber stamp the use of such evidence, then I guess we'll have to see what the Sup. Ct. has to say.

Under the NEW rules!

Just stopping to wish you a merry and festive holiday.

Light a candle for freedom,
light a candle for peace,
light a candle for learning,
light a candle for honest democracy
light a candle for those who have not food or home
light a candle for the bruised beauty and waining bounty of our over used planet
light a candle for those hunted and harried for having a different belief
light a frigging bonfire to give light to the great power that is in the dark.

[why not? I hears its a season for miracles and hope.]

no one argued to the contrary

This is incorrect, as noted above. I didn't find the contrary stuff til later.

It might be sad that none of the blogowners, other than brave, sane, and beautiful, Hilzoy, cares to bother to post these days, or it might be a sign they have a life, unlike me (thee? I couldn't say). Insofar as they try to show up here, a, and insofar as they they have another life, b. Congrats on the b to them.

Not great blogging, though, to be sure. On the other hand, life and having a family is likely better. It's good work, if you can get it.

(My resentment is young, but my resolution to let go is almost as young. Although not nearly on top of my hurt feelings, yet, because I'm almost human and sensitive like that, oddly or inexplicably, or whatever Back to girls with spots, I guess.)

Hey, Gary, Merry Christmas and have a great big happy 2006. Don't let go -- go get it.

My best wishes, too. I ggoled "cat stool softener" because he walks around with things not quite all the way out of his butt, and I thought that might detract from dinner. I found out that canned pumpkin, but not pie mix, is supposed to help, although I couldn't find any. It turned out that wasn't a problem, not nearly as much as my elderly father in law twisting his Christmas napkin into a cone and sticking it way up his nose at the dinner table.


Our dog used to eat everything, but particularly loved all that was soap. He ate the cassette tape, and, naturally, it reeled out of his ass.

I'd only tell this to you, my friends, since we're friends.

It's not as if I'd confess this sort of thing to people I just liked, when I was feeling lonely, after all. That would never happen.

I'm sure Abe Foxman will be quick to stand up for the rights of these poor muslim gentlemen.
That was meant to be funny.
How about the ACLU?
Almost as funny.

One wonders: if these fellows were mistakenly and wrongly imprisoned, why exactly does the government still want them in custody? I mean, among other things, isn't that a simple waste of money and resources? Couldn't freeing up their cells and cots create space for, you know, an actual terrorist?

But the more I think about it, it does make sense, and really is defensible. Training requirements do, after all, demand that we have a few "practice terrorists" around so that guards and interrogators will know what to do when they encounter the real thing. Think Clinton or Kerry would have been so thorough and zealous in their protection of the American people? Think they would have gone to the trouble and difficulty of obtaining "practice terotists"? I doubt it.

Well, part of it is that peculiar stubbornness to admit error - even when the error is known to all. It's the same stubbornness that keeps prosecutors from admitting they convicted the wrong person for a capital crime, even as said person is being set free.

Part of it might also be that an innocent person, held for 3 or 4 years, possibly in solitary confinement, and very likely undergoing torture, might not be inclined to let bygones be bygones if released. The Bush Admin, in its infinite wisdom, is energetically making new terrorists in its prisons, as well as throughout the world.

The notion that our government might actually make a "mistake" is hard to grasp, to be sure, given the unpleasantness of it.

Still, one is better off learning how that sort of thing happens, rather than comforting one's self with the far more pleasant preference. That's my poor theory, anyway.

I just wrote my senator (Specter, PA), under the "a drop in the bucket is still a drop" rule.

Thanks for your continued posting on this case.

Interesting story. But I'm curious: how can a military training camp in Taliban-controlled Afghanistan exist without there being Taliban sanction of the camp?

I guess I'm still naive. This judge thinks this abstract exercise in Wonderland fantasy is the practice of law?

"how can a military training camp in Taliban-controlled Afghanistan exist without there being Taliban sanction of the camp?"

Simple - no-one, including the Taliban, has *ever* been able to make their writ run over all of Afghanistan.

Of course, even if the camp was Taliban sanctioned this still doesn't make the Uighurs enemies of the *US* - the Taliban were sympathetic to the Xinkiang insurgency (which is maybe one reason China didn't veto the invasion).


Regarding the powers of the executive to hold Mariel Cubans in federal prison in "detention" (not being "punished", certainly not), pending a deportation that could not reasonably take place, try a 9th Circuit case captioned Alvarez-Mendez v. Stock.

it's noteworthy that this case, and others like it, lead Congress to change the law and restrict the power of the executive to hold detainees in perpetuity.

Any relationship between this case and the existence of Gitmo is, of course, purely coincidental. For that matter, any similarity between Congressional response to Executive assertion of power over non-deportable detainees and over, say, foreign intelligence surveillance is ... irrelevant?

ps: cast a quick look at the list of those on the side of the plaintiff.

BTW, http://www.scotusblog.com/movabletype/archives/2006/01/a_new_front_in.html#more>Scotusblog is following the GLK story post-enactment.

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