As my friend and fellow Habeas attorney David Remes tells us, the Obama government is now using the pendency of the "interagency review" as a basis for moving to stay the habeas cases. (Eric Holder has stated that the interagency review could take "a good portion" of the year Obama gave to close Guantanamo.)
But that is not enough... again from David Remes:
"Going further, the government suggests that if the interagency review team deems a prisoner eligible for release, the prisoner's habeas case is over - even if the prisoner remains in US custody, and however long he may remain in US custody - because the review team has given him the only relief he could have gotten from the court: a determination that he should be released. What the government means (and says) is that, in its view, the court has no power to order the prisoner's release. The court lacks such power, the government says, because the court cannot order his release into the US (the government cites Kiyemba for this) or order the President to release the prisoner to another country (the government, stretching Kiyemba, also cites it for this). (It would appear that the government will defend Kiyemba, a Bush triumph, if the petitioners seek cert.)
Thus, we come full circle. First, the government argued that the courts have no jurisdiction to entertain the prisoners' habeas cases; the Supreme Court shot that argument down in Rasul. Then, the government argued that even if the courts have jurisdiction, the prisoners have no rights. The Court shot that argument down in Boumediene. Now, the Obama DOJ, like the Bush DOJ before it, is arguing that even if the court has jurisdiction, and the prisoner has rights, there's nothing a court can do to enforce those rights, because the president alone controls whether a prisoner shall be released. Of course, a right without a remedy is not a right.
The government also says the case stops even if the prisoner wants to pursue his case to overturn his enemy combatant designation, and even if overturning the designation might make it easier for the prisoner to be released, because the prisoner's "reputational interest" is not enough to support continued jurisdiction.
Finally, the government lies about its position in Al-Marri as to Al-Marri's enemy combatant status. In the Supreme Court, particularly in its reply brief in support of its motion to dismiss as moot or vacate and remand, the government said Al-Marri's enemy combatant status had been revoked; in this filing, it says his enemy combatant status remains intact.
Good show! It feels like old times."
For those of you who do not know David Remes he is another of the habeas counsel that has given up his law practice to work solely on the Guantanamo cases. David represents several of the Yemeni men.
Click on the title to read Scotusblog's take on this and for the link to the governments pleading.