Obama Can't Guarantee Judges Won't Free Former Gitmo Prisoners, Critic Says

By Edwin Mora | May 27, 2009 | 7:31 PM EDT

In this photo taken Wednesday, May 13, 2009 and reviewed by the U.S. military, Guantanamo detainees jog at dusk inside the exercise yard at Camp 4 detention facility, at Guantanamo Bay U.S. Naval Base, Cuba. In a speech Thursday, President Barack Obama defended his plans to close the Guantanamo prison camp. (AP Photo/Brennan Linsley)

(CNSNews.com) – Conservative and liberal legal experts are divided over whether President Obama has the authority to keep a promise he made earlier this month regarding enemy combatants currently held at the U.S. prison camp at Guantanamo Bay, Cuba. Once Gitmo is closed, no dangerous prisoners will ever be released, Obama has promised.

A conservative legal expert told CNSNews.com that it will be up to the courts -- not Obama -- to keep such individuals imprisoned after Obama brings them into the United States. But a liberal expert said the president will have unilateral authority to keep individuals in custody regardless of what the courts decide.

The president made the pledge not to release any dangerous prisoners now being held at Guantanamo in a May 21 speech at the National Archives. 

“We are not going to release anyone if it would endanger our national security, nor will we release detainees within the United States who endanger the American people,” Obama said. 

“Where demanded by justice and national security, we will seek to transfer some detainees to the same type of facilities in which we hold all manner of dangerous and violent criminals within our borders,” he added.

The president described the prisons most suitable for housing Gitmo detainees as “highly secure prisons that ensure the public safety.” 

“As we make these decisions, bear in mind the following fact: nobody has ever escaped from one of our federal ‘supermax’ prisons, which hold hundreds of convicted terrorists,” he added. 

However, Charles D. “Cully” Stimson, a senior legal fellow at The Heritage Foundation’s Center for Legal and Judicial Studies, told CNSNews.com that to prevent courts from releasing detainees that are sent to U.S. prisons, the administration will have to work with Congress to provide the courts with a “legal framework.” 

“The (Obama) administration can never guarantee what a court will and will not do," said Stimson, former deputy assistant defense secretary for detainee affairs in the Bush administration.

“But they can--and I predict that they will--work closely with Congress in drafting a legal framework to address the legal status of detainees who they bring in to the U.S., thereby narrowing what the courts will be able to do with them.”

But Ken Gude, associate director of the International Rights and Responsibility Program at the Center for American Progress, a liberal think-tank, indicated that the executive branch has the power to keep detainees, such as those at Gitmo, in custody.

“If you are in pre-trial detention, you are in the custody of the prison and the U.S. Marshal Service, which is responsible for the security of the court,” Gude told CNSNews.com. “Those are both executive branch agencies.”

He added: “This is how it’s been at all times, judges are going to preside over the trials, but custody decisions remain in the executive branch.”

Offering another perspective, David Rittgers, legal policy analyst at the libertarian Cato Institute, told CNSNews.com that President Obama has already assumed the authority to decide who will be kept detained regardless of any court’s decision.

“The president has claimed the authority (to keep an individual detained) until he achieves the ‘diplomatic means’ to release a detainee,” Rittgers told CNSNews.com.

“Diplomatic means” is a reference to deporting a detainee to another country.

Unless the Supreme Court steps in, the president would be able to keep a Guantanamo Bay prisoner detained indefinitely, he added.

Stimson, meanwhile, pointed out that if the administration and Congress do not set legal guidelines of how the courts should handle the Gitmo detainees once they are placed in U.S. prisons, nothing would prevent judges from releasing detainees who are not designated “enemy combatants” during the process of deportation.

“If the judge finds they’re (detainees) not enemy combatants and if after reasonable period of time the State Dept. can’t find a home for them (in another country) and they are, by default, in the immigration context, is it reasonably likely that the judge will order that person to be released in the U.S. pending deportation to another country?” Stimson asked.
“I think that’s one of the many tricky issues that the Obama administration will need to work with Congress on,” he added.
Gude, however, said he believes that detainees undergoing the deportation process would remain under custody at all times.
“In a very unlikely event of an acquittal, they (detainees) would be placed in deportation proceedings because they are not lawful residents of the United States and so they would be in immigration detention for the duration of their deportation process,” Gude told CNSNews.com.

Rittgers, meanwhile, pointed out that the fate of one group of detainees, the Uighurs--a group of Turkish Muslims from China being held without charge at Guantanamo Bay--is especially uncertain.

Although the courts have decided to release them, they remained detained because the administration wants them held.

“The Uighurs, if released to China, could face execution, so that administration has decided to keep them detained even after the courts decided to release them,” Rittgers told CNSNews.com.

But Attorney General Eric Holder, during a testimony before the House Committee on the Judiciary on May 14, said that the Uighur detainees will have to be released because a United States court mandated so.

“In terms of release (of Uighurs), we don’t have a choice, they have to be released, unless you (Congress) ask us to defy an order form the United States court,” Holder said.

As the Obama administration reviews the cases of the 240 Gitmo detainees, the president said last week said that detainee cases will fall under five categories:
1) Those who violate American law--who will be dealt with by federal courts; 2) those who violate the laws of war, who will be tried by military commissions; 3) those that the courts have ordered released; 4) detainees who will be transferred to other countries; and 5) those who cannot be prosecuted but pose a national threat.