114 | Towards the Closure of Guantanamo reasons. 333 These and other approaches were addressed by the Senate Judiciary Committee, Subcommittee on the Constitution, Civil Rights and Human Rights, in a hearing entitled “Closing Guantanamo: The National Security, Fiscal, and Human Rights Implications” held on July 24, 2013. 334 Although there are those who consider that detention at Guantanamo is not only constitutional but also necessary, 335 there is a significant national and international consensus that the detention facility should be closed. Six years after the adoption of the executive order, however, the detention facility remains open. 274. Guantanamo detainees can be released through three different mechanisms. First, by an executive order such as the one adopted by President Obama on January 22, 2009. Between that date and December 2010, 67 prisoners were transferred or released. As will be discussed, however, as from January 2011 the U.S. Congress, through the National Defense Authorization Act (NDAA), has placed a number of restrictions that have had a serious detrimental impact on the number of detainees transferred. 275. Second, detainees can challenge the lawfulness of their detention in federal courts. In the two years following Boumediene, more than 30 detainees had their habeas corpus requests granted and were released to their countries of origin or third countries. 336 Those who successfully challenged the legality of their detention in U.S. federal courts are not subject to the transfer restrictions established in the NDAA. However, as indicated in the previous chapter, since July 2010 federal courts have shifted the burden of proof to the detainees raising questions about the correct application of Boumediene and denying detainees a meaningful opportunity to challenge the legality of their detention. On October 7, 2008, in the case of Kiyemba v. Obama the D.C. District Court ordered that 17 Uighurs be immediately released into the United States, the first time that a district court judge ordered Guantanamo prisoners released on a habeas corpus petition. The D.C. Circuit Court, however, reversed the decision, holding that, absent a statute expressly authorizing federal courts to order release of Guantanamo detainees into the United States, they had no power to order the release. 337 The U.S. Supreme Court first granted certiorari but, after remanding the case to the appeal court, rejected a subsequent certiorari given 333 334 335 336 337 In his State of the Union Address of 2014 President Obama indicated: “this needs to be the year Congress lifts the remaining restrictions on detainee transfers and we close the prison at Guantanamo Bay – because we counter terrorism not just through intelligence and military action, but by remaining true to our Constitutional ideals, and setting an example for the rest of the world.” Speech available at: http://www.whitehouse.gov/the-press-office/2014/01/28/president-barack-obamas-state-union-address The testimonies of the hearing are available at: http://www.judiciary.senate.gov/meetings/location-changeclosing-guantanamo-the-national-security-fiscal-and-human-rights-implications See testimonies of Congressman Mike Pompeo and Frank J. Gaffney, Jr., President of the Center for Security Policy at the Senate Judiciary Committee’s hearing on July 24, 2013. Available at http://www.judiciary.senate.gov/imo/media/doc/7-24-13PompeoTestimony.pdf and http://www.judiciary.senate.gov/imo/media/doc/7-24-13GaffneyTestimony.pdf A list of some of these cases has been published by Andy Worthington, “Guantanamo Habeas Results: The Definitive List”. Available at: http://www.andyworthington.co.uk/guantanamo-habeas-results-the-definitivelist/ Kiyemba v. Obama, 555 F.3d 1022, 1032 (D.C. Cir. 2009). Organization of American States | OAS