Avoiding court dates

Wed Mar. 30, 2005 4:06 PM EST

Earlier this week, U.S. District Judge Henry Kennedy, Jr., ruled that 13 Yemeni detainees in Guantanamo, all of whom are currently challenging their detention, could not be moved to another country without 30 days' advance notice provided to their lawyers. (See an earlier post on the case here.

Judge Kennedy didn't base his decision on the grounds that the detainees might be tortured if sent to another country. Rather, he emphasized that the transfer of the detainees "would eliminate any opportunity…to ever obtain a fair adjudication of their fundamental right to test the legitimacy of their executive detention." The right of the detainees to appeal their detainment, however, is still pending a decision. SCOTUSblog reports that the case will likely go to the Supreme Court, but that it could be a while—next fall at the earliest.

As Judge Kennedy noted, if the detainees were transferred abroad, the U.S. Courts would no longer have any jurisdiction over their claims. Hence, Kennedy's decision throws a wrench in any plans the Bush administration might have had to make these lawsuits quietly disappear. On the other hand, even though the 30 days notice requirement is a positive step, the Yemenis' cases won't be heard in that timeframe, so it is still a possibility that the Bush administration could push to send the detainees out of Guantanamo before they even get their day in court.

Still, the ruling is a clear win for the 13 Yemeni detainees and their lawyers. But a number of the approximately 540 detainees still in Guantanamo still either have no representation or have not yet met with a lawyer. These detainees will all be a prime target for relocation by the Pentagon before they can challenge their detention in courts.

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