WASHINGTON -- The US military will soon release a Dane and five British detainees being held without trial at the Guantanamo Bay prison camp, officials said yesterday -- including two lead plaintiffs in a pending landmark Supreme Court case over whether the prisoners have a right to challenge their detention in US courts.
The announcement that the detainees will be returned to their home governments was the most dramatic gesture yet in a series of moves legal analysts say are meant to convince the Supreme Court that it need not interfere with the US detention center in Cuba because the Bush administration is providing sufficient safeguards on its own.
The transfer also rewarded Prime Minister Tony Blair of Britain, who has faced intense political heat over the British citizens being held at Guantanamo. In an unprecedented gesture, 175 members of the British Parliament from all parties have filed a friend-of-the-court brief with the US Supreme Court, saying the detention policy flouts the rule of law.
"The administration is trying to strengthen its case at the court by expatriating detainees back to friendly allies, with an eye toward eventually claiming that only truly bad apples are left on Guantanamo," said Harold Koh, Yale Law School dean-designate and a former assistant secretary of state for human rights. "The question, of course, is why it has taken so long to return those who should have been expatriated months ago."
Two of the Britons who will soon be released, Shafiq Rasul, 24, and Asif Iqbal, 20, are among the four named plantiffs in Rasul v. Bush, for which the Supreme Court will hear oral arguments in April. The case centers on the Bush administration's contention that the US court system has no jurisdiction over foreigners held on Cuban soil, and thus cannot hear challenges to their detention.
Human rights advocates counter that the United States has had exclusive control of the Guantanamo Bay base for a century, and that under the rule of law, the military's actions must be held accountable to review by an independent court.
The release of Rasul and Iqbal alone does not render the case moot, said Michael Ratner of the Center for Constitutional Rights, because two Australian plaintiffs remain at Guantanamo, as do 12 Kuwaitis in a companion case.
Ratner said the center, which filed the Rasul case, has contingency plans in the event the Bush administration releases the rest of the plaintiffs: filing a new challenge for a remaining prisoner, then petitioning the court to join his case to the existing appeal.
"We haven't yet seen whether what's going on here is really an attempt to get this out from under the court," Ratner said. "What's clear is, this is an effort to try to say to the court that `We can do something as the Bush administration and you don't have to mix in here.' "
But a Defense Department spokesman said the releases and other recent policy changes at Guantanamo Bay were not made in response to the Supreme Court.
"We do believe that we have a good process in place at Guantanamo," he said. "The developments you see are simply the natural development in the detainee process," he said. "As we said all along, we had no desire to hold these individuals longer than necessary. We have said that we would release individuals when they were no longer a threat. And what you're seeing now are developments that are completely in line with our policy."
Since the court announced last November that it would hear the Guantanamo appeal, the US military has implemented a series of new policies. In December, officials said that 100 or more detainees would soon be sent home. Four detainees facing possible trial were subsequently assigned lawyers. Three juveniles whose plight had received news media attention were freed late last month.
Last week, Defense Secretary Donald H. Rumsfeld gave new rights to a core group of detainees who may never be released because they are deemed to pose too much of a threat. He said each detainee in this group would be brought before a parole-board-like review panel once a year and be allowed to make the case that he should be freed.
And in parallel cases involving US citizens who had been held without charges or legal representation, both American "enemy combatants" -- Jose Padilla and Yaser Hamdi -- have also been given access to lawyers. In each case, the administration said its actions were discretionary and not mandated by law.
Nonetheless, many European leaders were not assuaged by the recent changes and continued their criticisms of the lack of civil liberties at Guantanamo, demanding transfer of their citizens into custody in their own countries.
Richard Boucher, assistant secretary of state for public affairs, said the British and Danish governments have given assurances that they would not allow the six detainees to pose a future threat to America. "These two countries are among our closest allies in the fight against terorrism," Boucher said yesterday. "We have full confidence that they will take the responsibility to ensure that these people do not become a threat to the United States or to their own citizens."
Like most at Guantanamo, the detainees who will soon be released were all apparently captured in Afghanistan shortly after the coalition invasion in late 2001. Foreign Secretary Jack Straw of Britain said the five British detainees -- identified by the BBC as Rasul, Iqbal, Ruhal Ahmed, 21, Tarek Dergoul, 24, and Jamal Udeen, 35 -- would probably be taken into custody again as soon as they arrived in England.
"Once the detainees are back in the UK, I understand that the police will consider whether to arrest them under the Terrorism Act 2000 for questioning in connection with possible terrorist activity," said British Foreign Secretary Jack Straw. In contrast, Foreign Minister Per Stig Moeller of Denmark said that Slimane Hadj Abderrahmane would not face further incarceration. "Under Danish law, it is not possible to put him on trial," he reportedly told the Danish Parliament. "He will come to Denmark as a free man."
There are four Britons still at Guantanamo who have not been promised their release, two of whom have been designated as eligible for trial by military commission. There was no word about why the other two had not been released, though the United States has said it will not free those it views as the most dangerous. The US military has released 87 prisoners and transferred five more to their home governments -- four to Saudi Arabia and one last week to Spain -- for continued detention. It continues to hold about 650 people at the naval base, where the first detainees were brought from Afghanistan more than two years ago.