For 20 at Guantánamo, Court Victories Fall Short

For 20 at Guantánamo, Court Victories Fall Short
Brennan Linsley/Associated Press


Twenty men held at Guantánamo Bay despite favorable habeas corpus rulings are appealing to President Obama for help.


By WILLIAM GLABERSON
Published: February 25, 2009

Since the Supreme Court’s landmark ruling in June giving Guantánamo detainees a constitutional right to have federal judges review their imprisonment, 23 of the men have been declared in court not to be enemies of the United States.

But 20 of those 23 remain at the United States naval base in Guantánamo Bay, Cuba, caught in a strange limbo of exonerated men living behind barbed wire. Their lawyers are now appealing directly to President Obama, arguing that the federal habeas corpus cases allowed by the Supreme Court decision are failing to deliver the only justice that matters: freedom.

“These are innocent men, held in a prison that has become a national shame,” the lawyers say in a letter to President Obama they are to release at a Washington news conference on Thursday. They ask that the president “restore liberty to these men” by sending them home, finding another country where they are willing to go, or permitting them into the United States.

Although most of the men are held in conditions less restrictive than Guantánamo’s maximum-security cells, they remain prisoners subject to military rules and, some of the lawyers claim, abusive conditions. One of them is Lakhdar Boumediene, an Algerian who once lived in Bosnia, for whom the Supreme Court’s June ruling was named.

Stephen H. Oleskey, one of his lawyers, said Mr. Boumediene and another Algerian who was also ordered freed by a judge in November see their legal victory as hollow. “It’s very hard to explain how they could be free men and still be imprisoned,” Mr. Oleskey said.

A Justice Department spokesman, Dean Boyd, said officials were “taking all necessary and appropriate steps” to transfer the two Algerians and were “actively seeking the resettlement” of 17 others, Muslim Uighurs from China. He said the government was considering whether to appeal a judge’s January ruling in the case of the 20th detainee, a former resident of Saudi Arabia who was first detained when he was 14.

Some legal experts say the cases of the 20 men pose an extraordinary challenge for the courts, which are generally able to ensure that prisoners who should not be held can be released. But government officials say arranging the transfers of Guantánamo detainees to other countries involves a complicated negotiation through a minefield of international sensitivities.

The Bush administration refused to admit any of the former Guantánamo detainees into the United States. The Obama administration has not yet made its position clear.

Samuel Issacharoff, a professor at New York University Law School, said the standoff showed the limitations of the legal system in dealing with the prison set up seven years ago on the naval base in Cuba, partly to be remain clear of American courts.

“The Bush administration chose the path of holding people beyond the reach of the law,” Professor Issacharoff said. “The Obama administration is learning it is difficult to unwind those practices.” Habeas corpus cases, he said, are hampered because there are no clear rules about how to deal with prisoners who cannot simply be set free outside the jailhouse doors.

The detainees’ lawyers assert that at least 2 of the 20 men have been physically abused in recent weeks. A spokeswoman for the prison, Cmdr. Pauline Storum, said there had been no substantiated claims of abuse in recent weeks.

In a news conference in Washington, Attorney General Eric H. Holder Jr. said that in a visit to Guantánamo on Monday he noted a “very conscious attempt” by guards to “conduct themselves in an appropriate way.”

The 17 Uighurs have been described as terrorists by the Chinese government, which has a history of repressive measures in dealing with its Muslim minority. Last week, a federal appeals court overturned a district judge’s order that would have freed the men in the United States, saying the judge was assuming powers reserved to the president and Congress.

But that decision left in place the Bush administration’s concession that the men are not enemy combatants, the classification the government used to detain men at Guantánamo.

Bush administration officials said for years that they could not return the Uighurs to China for fear of mistreatment or torture. They also said efforts to find a new home for the 17 men had failed after talks with more than 100 countries.

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