According to the ruling, the decision arose from the Uighurs case, which has been much in the news in past months, as the U.S. has already said these prisoners are not "enemy combatants", and are not being charged with any crime (even as they remain at Guantanamo, where they have been held for over seven years, many of them in windowless cells 22 hours a day). The Circuit Court notes:
Nine Uighurs held at Guantanamo Bay, in order to challenge their detention, petitioned the district court for a writ of habeas corpus. Asserting that they feared being transferred to a country where they might be tortured or further detained, they also sought interim relief requiring the Government to provide 30 days’ notice to the district court and to counsel before transferring them from Guantanamo.CCR attorney, Emi MacLean, said in a press release today:
Today, the court has abdicated its role in safeguarding individuals in U.S. custody from transfers to torture.Despite its contention that the judiciary has no role in determining the safety of prisoners transferred out of custody, Circuit Judge Ginsbug said the majority decision was based on the Munaf v. Geren Supreme Court decision last year. Ginsberg quickly dismissed the argument regarding release to torture (emphasis added).
Egregiously, the court has done so based upon nothing more than the Executive’s promise not to send an individual to a place where he will be tortured. In the long ugly history of U.S. detention at Guantánamo, the Executive has made repeated hollow promises that “we do not torture.” “Trust the President” is not enough in 2009 to prevent U.S. complicity in torture and to protect an individual’s rights.
Like the detainees here, the petitioners in Munaf asked the district court to enjoin their transfer because they feared they would be tortured in the recipient country. The Court recognized the petitioners’ fear of torture was “of course a matter of serious concern,” but held “in the present context that concern is to be addressed by the political branches, not the judiciary.” Id. at 2225. The context to which the Court referred was one in which – as here – the record documents the policy of the United States not to transfer a detainee to a country where he is likely to be tortured. Id. at 2226. Indeed, as the present record shows, the Government does everything in its power to determine whether a particular country is likely to torture a particular detainee. Decl. of Pierre-Richard Prosper, United States Ambassador-at-Large for War Crimes Issues ¶¶ 4, 7-8, Mar. 8, 2005.What better evidence could one ask for than the declaration (which one can read here) of Bush and Cheney's War Crimes Ambassador -- not! Pierre-Richard Prosper was a Bush flunky who most recently was a supporter of Mitt Romney, who famously announced during the last election, "My view is we ought to double Guantanamo.".
Moreover, the United States has conducted a program of extraordinary rendition when it routinely sent prisoners to other countries to be tortured, with collaboration from both United Kingdom and U.S. intelligence officers.
CCR presents another instance of U.S. motives in its transfer policies:
CCR’s client Abdul Ra’ouf Qassim was told he could leave Guantánamo years ago. Yet he is Libyan and had nowhere safe to go. The U.S. government twice tried to transfer him to Libya where he would have disappeared into a Libyan jail and been subjected to torture. It was only the court’s intervention which prevented Abdul Ra’ouf’s disappearance.Writing in partial dissent in the Kiyemba decision, Circuit Judge Griffiths noted that the prisoners had no guarantee under current law and decision that they would not be transferred to another state where, as at Guantanamo, they would be held in "indefinite detention." This would go against the Supreme Court ruling in Boumediene. (Note: this is the same court whose ruling about habeas rights of Guantanamo prisoners was overruled by SCOTUS in Boumediene.)
Like many other Guantánamo detainees, Abdul Ra’ouf has made the difficult “choice” to remain imprisoned in Guantánamo rather than face persecution or torture in his home country because his fear was so strong. He has reached out to the Swiss government to come to his aid and allow him to restart his life.
From the Judge's dissent:
The stakes of unlawful custody, which led the Court in Boumediene to extend habeas protections to the detainees in the first place, are no higher than the stakes of unlawful transfer. Indeed, because an unlawful transfer will deny the detainees any prospect of judicial relief, protecting their habeas rights in this context is vital.CCR's MacLean put today's ruling into perspective (emphasis added):
It is significant that the government has submitted sworn declarations assuring the court that any transfer will result in release from U.S. authority. If the government’s representations are accurate, each transfer will be lawful, for in habeas the only relevant judicial inquiry about a transfer is whether it will result in continued detention on behalf of the United States in a place where the writ does not run. But as we recently noted in another case involving the scope of habeas protections for detainees at Guantanamo Bay, a “naked declaration cannot simply resolve the issue.” Al-Odah v. United States....
Today’s decision creates a crisis for the sixty men in Guantánamo who cannot return to their home countries and seek humanitarian protection. It is urgent that countries intervene to provide safe haven for these men. Guantánamo can no longer be seen as purely a U.S. problem. It is an international dilemma demanding an international solution. Closing Guantánamo cannot result in disappearing people into countries where they fear torture or persecution. Guantánamo detainees seeking safe haven are from Algeria, Azerbaijan, China, Libya, the Occupied Palestinian Territories, Russia, Syria, Tajikistan, Tunisia, and Uzbekistan.The blunt truth is that the United States is a torturing country. Covering up for torture, by refusing to prosecute malefactors, as required by the Geneva Conventions, guarantees that the torture apparatus will remain intact. The veil of secrecy thrown over ongoing U.S. and CIA interrogations at Bagram also argues that torture is still going on, despite promises by President Obama. So, too, is the convergent evidence from stated policy of continuing the rendition program, and from the support given to the interrogation guidelines in the current Army Field Manual, which includes abusive use of solitary confinement, sleep deprivation, partial sensory deprivation, use of drugs, manipulation of fears, no ban on stress positions, etc.
The past Administration created a lawless zone that damaged our Nation’s reputation and harmed countless lives, and the new Administration promised to return the United States to the rule of law. If President Obama intends to close Guantanamo legally and humanely, he must commit to not transfer people to torture — as a matter of law, not hollow promises.
There are those -- and they may be in the majority, I don't know -- who believe that taking on the U.S. government over its torture policies would be impolitic, and in any case can wait until other, more pressing business over, say, the economy, is taken care of. This is a terrible mistake, for which all of us will pay, and not least enlisted men and women in the United States military, who will find themselves fair game for the enemy, who have every reason to believe that U.S. torture continues, and that the torturers are above punishment or control. To date, not one captured soldier has been returned alive in Iraq since the Abu Ghraib scandal broke.
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