In a defeat for the Bush administration, a federal judge ruled on Tuesday that the government could not transfer 13 Yemenis from the detention center at Guantanamo Bay, Cuba, unless it notified the judge and gave their lawyers a month to challenge the removal.
The opinion, by Judge Henry Kennedy of US District Court for the District of Columbia, was issued on a procedural skirmish that involved a small number of detainees, but it represented another rebuff to the administration's core legal contention that it has unbridled power to detain and transfer prisoners in the campaign against terror.
The Pentagon also announced that it had completed determining whether those held at the Guantanamo naval base were properly detained as unlawful enemy combatants. Navy Secretary Gordon England said that of the 558 cases reviewed, 38 detainees were no longer considered enemy combatants and could be eligible for release.
It could not be learned whether any of the Yemenis who were plaintiffs in the court case would be affected, because military officials did not identify those eligible for release.
In his ruling, Kennedy suggested that the 30 day notice was justified because the Yemenis had grounds for fears voiced by their lawyers that the government might send them to other countries where they might be subjected to extreme interrogation methods and indefinitely detained.
David Remes, a lawyer here for the 13, said the ruling placed new limits on the government.
"On a practical level, this decision places a restraint on the government's rendition policy," he said, referring to the practice of transferring terror suspects from country to country without formal legal proceedings.
"On a more political level, it's another rejection of the government's position that it is accountable to no one but itself and that the courts have no meaningful role to play here," he said.
A spokesman for the Justice Department said government lawyers in the case would not discuss the opinion. A Pentagon spokesman said the Defense Department "disagrees with the ruling by Judge Kennedy establishing the need to notify the detainees' counsel before anyone is transferred to his home country." The Pentagon had previously told the court that "we understand and follow our obligations regarding the transfer of individuals to other countries."
In its legal papers, the government argued that granting the detainees' petition for advance notice of any transfer would "illegitimately encroach on foreign relations and national security prerogatives of the executive branch" and damage the government's ability to coordinate counterterrorism efforts with other countries.
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