Guantanamo update

Judge orders Yemeni freed
A federal judge Wednesday 26 May ordered the Obama administration to free a Yemeni man at Guantánamo who has long claimed he was captured in Pakistan studying Koran and had no ties to al Qaeda.

U.S. District Judge Henry H. Kennedy Jr.’s ruling of unlawful detention in the case of Mohammed Hassen, 27, raised the number of detainee wins in Guantánamo detention challenges to 36.

The judge gave the government until June 25 to report back. It ordered the Obama administration to “take all necessary and appropriate diplomatic steps” to arrange for the Yemeni’s release “forthwith.”

Judge upholds Libyan’s Guantanamo detention
Separately, a federal judge upheld the indefinite detention of a Libyan at Guantánamo in an April 19 decision during a closed-door hearing in Washington not yet noted on the U.S. District Court’s public docket.

Judge James Robertson accepted the government’s argument in the case of Omar Mohammed Khalifh, 38, who as far back as 2004 sent a message to a military panel reviewing his status. “I would rather be in the worst American jail than be a minister in my country,” he wrote. “I want to stay here.”

Volunteer defense attorney Cary Silverman of Washington said Khalifh fled his country in 1995, as an opponent of the Qaddafi regime, and fears for his safety and that of his family were he to be returned. Defense lawyers, however, had sought his release to a safe third country.

DC Circuit refuses evidentiary hearing for Uighur detainees
(JURIST) The US Court of Appeals for the District of Columbia Circuit on Friday refused to order a new evidentiary hearing in the case of five Chinese Muslim Uighurs detained at Guantanamo Bay. Instead, in a per curiam decision, the court reinstated its original opinion, which gives political branches exclusive power in determining the release of non-citizens being held by the federal government. In April, the Supreme Court ordered the circuit court to reconsider Kiyemba v. Obama in light of the fact that each of the remaining Uighurs has received an offer of resettlement by another country. In response, the circuit court denied the petitioners’ request to remand the case to the district court for an evidentiary hearing on whether any of the resettlement offers were “appropriate,” holding that it was in the power of the political branches to determine whether a country is appropriate for resettlement. The court further explained that even if the detainees had good reason to reject the resettlement offers, they still possessed no right to be released into the US:

    In seven separate enactments – five of which remain in force today – Congress has prohibited the expenditure of any funds to bring any Guantanamo detainee to the United States. Petitioners say these statutes, which clearly apply to them, violate the Suspension Clause of the Constitution. But the statutes suspend nothing: petitioners never had a constitutional right to be brought to this country and released. Petitioners also argue that the new statutes are unlawful bills of attainder. The statutory restrictions, which apply to all Guantanamo detainees, are not legislative punishments; they deprive petitioners of no right they already possessed.

The Constitution Project, a bipartisan think tank focusing on constitutional issues, immediately denounced the judgment. The group criticized the court’s ruling for being too broad on the issue of the judiciary’s role the release of detainees. Authoring a separate concurring opinion, Circuit Judge Judith Rogers, agreed with the Constitution Project’s assertion that the ruling was too broad, but held that there was no role for the judiciary in this case because the five Uighurs “hold the keys to their release from Guantanamo. All they must do is register their consent” to the proposed resettlement offers.

Italy agrees to take two more Guantanamo detainees
[JURIST] Italian Foreign Minister Franco Frattini announced Tuesday 25 May that Italy will take two more detainees from the Guantanamo Bay detention facility. The announcement came during a meeting the US officials from the National Security Council, including National Security Adviser James Jones. Italy’s Interior Ministry will review profiles of potential transferees before an agreement is made with US authorities on which detainees Italy will take. Italy hinted at the possibility that the selected detainees may be brought to Italy as cleared captives rather than face trial or additional jail time. Last year, Italy accepted three Tunisian detainees  from Guantanamo to stand trial for terrorism charges.

US lawmakers mull bill to increase scrutiny of Guantanamo lawyers
(JURIST) US lawmakers are currently considering a Department of Defense (DOD) appropriations bill containing a section that would allow increased investigation by the Pentagon into the practices of lawyers representing Guantanamo Bay detainees.

Section 1037 of the National Defense Authorization Act for Fiscal Year 2011 would allow the Pentagon’s inspector general to conduct investigations if there is reasonable suspicion that a Guantanamo lawyer is interfering with DOD detention facility operations, violating DOD policy, violating any law that is within the exclusive jurisdiction of the inspector general, or generating a “material risk” to a member of the armed forces. Results from these investigations are reported back to Congress.

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