Hotel Guantanamo? Detainees Can Check Out, but They Can Never Leave

My ubiquitous colleague Eric Freedman, who has in the past 10 days testified on the Terry Schiavo case before Congress and consulted in the Medellin case, passes along this info about yet another one of his cases. Judge Henry H. Kennedy of the D.C. federal district court has granted a preliminary injunction preventing the Defense Department from transferring a group of 13 Yemeni nationals (whom he represents along with Covington and Burling) being detained in Guantanamo Bay until their habeas claims are fully resolved in federal court. It may seem odd that the lawyers for the Yemenis are trying to STOP the U.S. government from transferring them OUT of Gitmo, but the fear is that they will be abused or tortured in their home countries.

If anything, this order is a reflection of just how much the U.S. executive branch has lost credibility with the federal courts. The Defense Department offered sworn statements by high-level officials pledging that the U.S. government would not transfer detainees to places where they would not be treated humanely. This was not good enough for the federal judge, who held that allowing the transfer of detainees would extinguish their right in habeas to challenge their executive detention.

So the Defense Department is pretty much stuck. It is unclear under current law how long it can continue to detain aliens at Guantanamo. But it is now clear that under current law, they will not be given the discretion to clear out Guantanamo either.

The full order from Judge Harold Kennedy follows below:

MAHMOAD ABDAH, et al.,
Petitioners,
v.
GEORGE W. BUSH, et al.,
Respondents.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action 04-1254 (HHK)

ORDER
For the reasons stated in the court’s memorandum docketed this same day, it is this 29th
day of March, 2005, hereby

ORDERED, that Petitioners’ motion for a preliminary injunction is GRANTED; and it
is further

ORDERED, that Respondents shall provide Petitioners’ counsel and the court with 30
days’ notice prior to transporting or removing any of Petitioners from Guantánamo Bay Naval
Base; and it is further

ORDERED, that this order shall remain in effect until the final resolution of Petitioners’
habeas claims unless otherwise modified or dissolved.

Henry H. Kennedy, Jr.
United States District Judge