Down to the Wire for Two Gitmo Detainees

Ten more Guantanamo detainees have been transferred. They were accepted by Oman. (I don't think they are Oman citizens, as the Oman Government's press release refers to them being accepted for temporary residence on a humanitarian basis. ".... considering their humanitarian conditions, 10 people who have been pardoned arrived to the Sultanat".

[Added: Their identities have now been released. 8 are from Yemen and 2 from Afghanistan. Two were victims if mistaken identity.]

They were among the final 19 cleared for release. That means 9 detainees remain who are cleared for release. Of them, 3 are expected to leave this week, one each to the UAE, Saudi Arabia and possibly Italy. If all 9 are transferred, that would leave 36. Of these, 7 are set for military tribunals, 3 have been convicted, and 26 are determined to be too dangerous for release and subject to indefinite detention.

But there are two that have been cleared for release who weren't included on Obama's last notice to Congress. Their fate is up in the air.

Why? Probably an unfortunate bureaucratic lapse. Their lawyers filed habeas actions this past week in the District of Columbia. [More...]

The men — an Algerian named Sufyian Barhoumi and a Moroccan named Abdul Latif Nasir — both come from countries that the government has deemed stable enough for repatriations of other detainees in the past. Both were added to the transfer list last year by a parole-like board, but Mr. Carter did not sign off on a repatriation arrangement for them by the deadline.

>On Friday, however, lawyers for the two men filed an “emergency motion” before two judges in the Federal District Court for the District of Columbia, arguing that the judges should order their release without any delay as a matter of habeas corpus, lest their clients be imprisoned for at least another four years “because of administrative delays in filing paperwork.”

The habeas motions are here. They argue (in a nutshell) that the detainees' continued detention "is arbitrary and violates U.S. and international law." The cases are before different judges. One judge ordered a response from the Government yesterday, and the other by today. The first judge told the Government to prepare flight arrangements just in case she granted the motion as a matter of equity. Her order is here.

Barhoumi, the Algerian, has been detained at Gitmo for 14 years without charges. In May, 2016, the Periodic Review Board "concluded his detention is no longer necessary, and for that reason stated that it would exercise its discretion to release him."

Nasir, from Morocco, faces a similar situation -- detained for 14 years, no charges and recently cleared for release.

Their lawyers say "bureaucratic obstacles" having nothing to do with them or their case prevented them from being included on the Administration's list to Congress of those for whom transfer is being sought. They argue that there is an exception to the NDAA requirement for certification and waiting periods: "they do not apply to transfers made “to effectuate an order affecting disposition of the individual by a court....” (Section 1034(a)(2).)

Accordingly, they seek an emergency order setting aside the certification and 30-day advance notice requirements, or, alternatively, granting the writ, which would allow the current administration to release them immediately.

The men are asking the Court to do the following:

First, the Court should enter an order, plainly authorized by the plain language of the NDAA, declaring that the certification and 30-day notice requirements not apply in the unique context of these cases. An order granting this relief would as a practical matter remove the only remaining obstacle to Petitioners’ transfers.

There is also no serious dispute that this court has habeas jurisdiction to grant relief. Habeas corpus is an equitable writ, and the mandate of a court confronted with a claim of unlawful imprisonment is to exercise its independent judicial judgment as to what justice requires under the totality of circumstances and to fashion appropriate relief, including declaratory relief or other interim relief....A habeas court has broad equitable authority to dispose of this case as justice and law require.

The lawyers also argue alternatively that their continued detention is not authorized by the AUMF. But, they add:

To be clear, Petitioners do not in this motion challenge the basis for their initial capture and detention. And Petitioners do not ask the Court to direct their transfer to a preferred country of their choosing. They simply seek an order that will effectuate the result desired by all parties—repatriation—either by eliminating any legislative or bureaucratic obstacles to their
transfer, or, alternatively, by granting the writ. The Court should exercise its equitable habeas authority and enter an order effectuating their release without delay.

I agree. I also think Obama should be proud that despite an obstructionist Congress that opposed his closing Gitmo at every turn, he got the numbers down from 242 when he took office in 2009 to 36 (assuming these two get sent home.)

Guantanamo is indeed a stain on the United States. But it is not attributable to President Obama and should not tarnish his legacy. The (dis) honor, including the torture and abuse of detainees at black hole foreign prisons before sending them to Gitmo, as well as the decision to open Gitmo and the abusive conditions there in the early years belongs entirely to G.W. Bush and Dick Cheney and Donald Rumsfeld, and others in that administration.

More than 780 people have been detained at Gitmo since 2002. 9 died in custody. That less than 40 remain is a testament to Obama's unwavering efforts to close it, in the face of a Congress that year after year used funding restrictions to prevent him from doing so.

Gitmo should absolutely be closed. Those who remain should be tried in federal courts in the U.S. or released. Of course that won't happen now with the inexperienced, misinformed incoming occupant of the Oval Office, who is determined to hold his finger on the Gitmo pause button.

Biased headlines to the contrary, Guantanamo is a colossal failure and error of the Bush Administration, not the Obama Administration. But all of America will forever bear the stain, just as it will bear the stain for the next four years of the man about to take Obama's place.

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