Court Hears Arguments on Guantanamo Transfers

The federal appeals court in Washington, D.C., heard arguments Monday on whether the courts have a role in controlling transfers out of Guantanamo prison.

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Here's a question that a federal appeals court panel in Washington has to decide, whether courts may weigh in on the Bush administration's decision to transfer someone out of the prison in Cuba. The judges heard arguments yesterday in a case concerning detainees at Guantanamo Bay, Cuba.

NPR's Ari Shapiro reports.

ARI SHAPIRO: The case may seem counterintuitive at first. If a detainee has been at Guantanamo for five years and he's finally released, why would he want to go to a judge to stop that transfer? Sabin Willett represents some these detainees.

Mr. SABIN WILLETT (Attorney): If you were sent to a dungeon in Syria or Egypt, and you'd really not prefer to go back there, you - yeah, you'd want a say in that.

SHAPIRO: Administration officials argue that detainees are never released to a place they'll be tortured. At a recent roundtable with reporters, Attorney General Alberto Gonzales said: before the government will agree to a transfer, it often seeks assurances that a country will not mistreat the detainee.

Mr. ALBERTO GONZALES (United States Attorney General): This is something that's handled case-by-case, always with the view ensuring that we're meeting our obligations to ensure the humane treatment of the individual being rendered to another country.

SHAPIRO: Is there an outside check if, for example, the country does not fulfill their agreement, and we have reason to believe they are being tortured?

Mr. GONZALES: We have to in some way depend upon good faith, based upon our good judgment, that countries are going to meet their assurances to our country.

SHAPIRO: At oral arguments yesterday, Judge Thomas Griffith sought to clarify the government's position. Imagine we know a detainee will be tortured, he said. Is the government's position that there's no role for the courts, even then? That's right, replied Robert Loeb who argued the case for the government. He said these decisions involve sensitive negotiations with other countries and they can't hinge on court review.

Judge Brett Cavanaugh came to Lobe's defense. He pointed out that Congress may pass laws governing the transfer of detainees, so that's the constitutional check on Griffith's hypothetical scenario. This was Judge Cavanaugh's first day hearing cases as a federal appeals court judge. He was a White House lawyer when the administration developed its Guantanamo policies, but he said at his confirmation hearing that he did not work on those issues.

This case may go undecided. The White House has proposed legislation that would halt many Guantanamo cases, including this one, Congress already passed a law that would deny Guantanamo prisoners the right to sue in federal district courts. The current proposal would wipe out the pending cases too.

Ari Shapiro, NPR News, Washington.

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