A federal judge expressed skepticism yesterday about the legality of possible Bush administration plans to transfer dozens of men from the U.S. military prison in Cuba to the custody of foreign countries, saying that would remove detainees from the reach of U.S. courts and eliminate their legal claims for freedom.
U.S. District Judge Henry H. Kennedy Jr. extended for 10 days a temporary restraining order that bars the government from transferring detainees from the military prison in Guantanamo Bay, Cuba. He said he needs that time to decide whether the court has power over such transfer decisions and can order the government to provide detainees' lawyers with advance notice of a proposed transfer to a foreign government.
Kennedy's decision would mark the first time that a judge has ruled on whether U.S. courts can oversee the Bush administration's decisions about where to move Guantanamo Bay detainees. About 540 detainees remain at the prison, accused by the government of having ties to terrorist groups or the Taliban.
The United States has transferred 65 detainees to the control of other nations. But such transfers have become increasingly controversial as a growing number of Guantanamo Bay detainees say that U.S. interrogators have threatened them with torture and transfer to a foreign prison if they did not cooperate.
Families and lawyers of some detainees in foreign prisons contend that U.S. intelligence agencies have ordered or coordinated these imprisonments with foreign governments because the countries can use aggressive interrogation techniques prohibited in the United States.
The possibility of mass transfers comes at an important time in the legal battle over Guantanamo Bay detainees. A federal appeals court is weighing two conflicting decisions on whether the military violated detainees' rights and illegally concluded that they were "enemy combatants" without providing them adequate opportunity to rebut the charges.
"It is true beyond a reasonable doubt that [after a transfer], the court will not have jurisdiction to provide the relief sought by petitioners," Kennedy said.
Lawyers for some Guantanamo Bay detainees won the initial restraining order from another federal judge in the Washington federal court on March 12, after the New York Times reported March 11 that the Pentagon had plans to transfer as many as 90 detainees to foreign custody. Since then, the Department of Justice has said the government has no immediate plans to move a large number of detainees but has refused to agree to give the lawyers advance notice to challenge transfers.
At yesterday's hearing, detainees' lawyers said they need to know in advance where their clients are scheduled to be sent so they can decide whether to object in court. "The government can't transfer people to defeat a case on appeal," lawyer David Remes said.
But Justice Department attorney Joseph Hunt said the court cannot second-guess President Bush's decision making about whom the military no longer wants to hold.
"The court would in essence be ordering people to continue to be detained when the government says it no longer has an interest in detaining them," Hunt said.