Federal Judiciary

Constitutional clash over detainee?

By Akin Gump Supreme Court Practice Group

Urging a federal judge to order the immediate release of a young prisoner from Guantanamo Bay, his lawyers warned on Tuesday of a constitutional confrontation if the Obama Administration resists such an order. 

In the new filing by attorneys for Mohammed Jawad, an Afghan national, they argued: “Any assertion by the Executive that this Court somehow lacks the power to order his release and return to Afghanistan would raise serious separation of powers concerns…”   (The filing was accompanied by a declaration by a military lawyer for Jawad discussing the Afghan government’s plan to arrange to pick up the prisoner at Guantanamo.)

Within minutes after those documents were sent to U.S. District Court Judge Ellen Segal Huvelle, she gave government officials a little more than 24 hours to inform her “how they propose to resolve this case.”  She set a status conference in her courtroom for Thursday morning.  (Her order is here.)

Depending upon how government officials react in the next few days, the Jawad case could turn into a major test of what the Supreme Court meant when, 13 months ago, it ruled that Guantanamo detainees have a constitutional right to pursue habeas challenges and, perhaps, to gain their actual release.  Congress recently has taken steps to curb any such releases, but Jawad’s lawyers contended on Tuesday that those legislative actions “cannot have altered [Judge Huvelle’s] authority to order the most central of habeas remedies: [Jawad’s] immediate release.”

The Administration told Judge Huvelle last week that it no longer is opposing Jawad’s challenge to his detention, but also said it is considering pursuing war crimes charges against him.  It also asked the judge to allow the government to keep him in custody for perhaps several weeks while arrangements are made for his possible transfer or prosecution.

Full post as published by SCOTUSBLOG on July 28, 2009 (boomark / email).