A Big Loss for the Bush Assministration

From Holden:

The Bush assministration continued its losing streak in federal court yesterday as U.S. District Judge Henry H. Kennedy Jr. asserts control over GITMO detainees.

A federal judge yesterday barred the Bush administration from transferring a group of detainees from the U.S. military prison in Cuba to the custody of foreign governments without first giving the prisoners a chance to challenge the move in court.

U.S. District Judge Henry H. Kennedy Jr. 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 government must give detainees’ lawyers 30 days’ notice of any proposed transfer, the judge ruled, so their lawyers have time to object.

The judge also chided the Justice Department for arguing it was giving detainees what they had originally requested: freedom from U.S. control at the naval base at Guantanamo Bay, Cuba.


In his ruling yesterday, Kennedy said such transfers are hardly the same as giving detainees “a plane ticket to anywhere they want to go.”

“The [government’s] assertion that they are merely ‘relinquishing’ custody of detainees whom the government is simply ‘no longer interested in detaining’ is disingenuous,” Kennedy wrote in issuing an injunction against the government. “It seems beyond question that advocating for release into freedom is not equivalent to advocating for transfer from ongoing detention in one locale to ongoing detention in another.”


David Remes, a lead attorney for the detainees, cheered the ruling. “The government could have sent any of our clients abroad to places where they could be tortured, and we would never have a chance to object,” Remes said. “The government would effectively make these cases go away. And right now these cases are a monumental embarrassment to the government.”

Several detainees have claimed that U.S. interrogators tortured them, sent them to foreign countries to be tortured, and that the only evidence against them in some cases are the statements of fellow detainees who have been tortured.


Legal specialists called Kennedy’s decision a significant milestone in the government’s anti-terrorism efforts for two reasons. They said he is the first judge to rule that courts have control over detainee transfers. Second, his ruling wrests more control from the government, another court setback for an administration that sought to run Guantanamo without court oversight.

Experts said it could affect the administration’s “renditions,” a surreptitious practice of sending detainees to foreign countries that can employ more abusive interrogation tactics.

“It’s hugely significant because it shows there is a real check against the government’s power here,” said Matthew S. Freedus, a Washington lawyer and expert in military law.


“They got the wrong guys at the wrong place,” said Michael Ratner, of the Center for Constitutional Rights. “These people were imprisoned, interrogated and tortured for no reason. So now the government wants to get rid of them, because they just can’t justify what they’ve done.”

Kennedy wrote that it “is not a foregone conclusion” that the military has properly classified the Guantanamo Bay detainees as enemy combatants, thus the detainees’ legal claims must be protected.