Ruling limits U.S. transfer of Guantanamo detainees

03/30/2005

David Johnston, New York Times
March 30, 2005

WASHINGTON, D.C.—In a defeat for the Bush administration, a federal judge ruled on Tuesday that the government could not transfer 13 Yemenis from the detention center at Guantanamo Bay, Cuba, unless it notified the judge and gave their lawyers a month to challenge the removal.

The opinion, by Judge Henry Kennedy Jr. of U.S. District Court for the District of Columbia, was issued on a procedural skirmish that involved a small number of detainees, but it represented another rebuff to the administration’s core legal contention that it has unbridled power to detain and transfer prisoners in the campaign against terror without court reviews.

The Pentagon also announced that it had completed determining whether those held at the Guantanamo naval base were properly detained as unlawful enemy combatants. Navy Secretary Gordon England said that of the 558 cases reviewed, 38 detainees were no longer considered enemy combatants and could be eligible for release.

Asked if there was a common thread in the 38 cases in which detainees were said to no longer fit that definition, England said they had “thin files”—meaning there was insufficient supporting evidence.

In his ruling, Kennedy suggested that the 30-day notice was justified because the Yemenis had grounds for fears voiced by their lawyers that the government might send them to other countries where they might be subjected to extreme interrogation methods and indefinitely detained.

Kennedy said he was preventing transfers without advance notice to bar the government from “unilaterally and silently taking actions” to move detainees outside the reach of U.S. courts.

The judge also chided the Justice Department for arguing it was giving detainees what they had originally requested: freedom from U.S. control at Guantanamo. Kennedy said such transfers are hardly the same as giving detainees “a plane ticket to anywhere they want to go.”

In its legal papers, the government argued that granting the detainees’ petition for advance notice of any transfer would “illegitimately encroach on foreign relations and national security prerogatives of the executive branch” and damage the government’s ability to coordinate counterterrorism efforts with other countries.

Human rights lawyers expressed hope that the opinion on Tuesday, which applies just to the Yemenis at Guantanamo, would influence more than 40 other cases in which judges are considering similar petitions filed by lawyers for about 130 additional detainees. Lawyers are also trying to file similar actions for the remainder of the 540 detainees at the base.

The Pentagon has said about 214 detainees have left the base. Of those, 149 were transferred to their home countries. Most have been freed, but others have been detained by those governments.