Supreme Court dismisses appeal by Uighurs held at Guantanamo

The Supreme Court Monday decided not to hear the appeal of a group
of Uighurs who have been held without charge at Guantanamo Bay for
eight years. The case was originally scheduled for the high court’s
docket March 23.

In
this June 2009 file photo, a guard and a Chinese ethnic Uighur
Guantanamo detainee communicate at Camp Iguana detention facility, at
Guantanamo Bay US Naval Base, Cuba.

Brennan Linsley/AP/File

By

Warren Richey Staff writer /
March 1, 2010

Washington

The
US Supreme Court decided Monday not to hear the appeal of a group of
Uighurs, members of an ethnic group from western China, who have been
held without charge at Guantánamo Bay, Cuba, for eight years.

The
high court had agreed to take up their case to examine whether a
federal judge acted within his authority when he ordered the government
to bring the detainees from Guantánamo to the United States for release
pending their possible resettlement in a third country. Its decision
came three weeks before the justices were originally scheduled to hear
the case.

The case, Jamal Kiyemba v. Obama, had the potential to
be one of the most important of the current term, raising difficult
questions about national security and a potential clash between the
executive and judicial branches of government.

Government lawyers
argued that the judge exceeded his authority in ordering the release as
part of the Uighurs’ successful habeas corpus challenge. Justice
Department lawyers said that the executive branch controls immigration
and has the exclusive authority to decide who may or may not be
admitted into the US.

A federal appeals court panel sided with
the government. The Uighurs appealed to the Supreme Court, and the
justices had agreed to hear their case March 23. (For more Monitor
coverage of the case, click here.)

In
the meantime, the Obama administration continued to work to resettle
the Uighurs in a third country. They could not be returned to their
native China under US law because, as a disfavored ethnic minority,
they feared possible abuse and torture by the Chinese government.

Of
22 Uighurs originally detained at Guantanamo, five were resettled to
Albania, four went to Bermuda, and six to Palau. By early 2010, all but
one of the remaining seven Uighurs had been offered resettlement in at
least one other country.

The fact that one Uighur was still being
held without a resettlement offer undercut government arguments that
the case should be dismissed.

That changed on Feb. 3, when the
Obama administration secured a resettlement offer from Switzerland for
Arkin Mahmoud, the last Uighur to receive such an offer, and his
brother, Bahiya Mahnut. Once the two accepted the offer, the government
was then able to argue to the Supreme Court that the conditions
underlying the original order by the federal judge had now
substantially changed.

At the time of the original order, the
Uighurs argued that they had no other option for release than to come
to the US pending resettlement. With the Swiss offer, all the Uighurs
had received at least one resettlement offer outside the US.

It
is that change that prompted the high court to vacate the earlier
appeals-court decision and send the case back for reconsideration based
on the new circumstances surrounding the Uighurs’ detention.

“By
now,… each of the detainees at issue in this case has received at least
one offer of resettlement in another country,” the justices wrote in
their unsigned opinion on Monday. “Most of the detainees have accepted
an offer of resettlement; five detainees, however, have rejected two
such offers and are still being held at Guantánamo Bay.”

The justices said: "This change in the underlying facts may affect the legal issues presented."

Government Changes Facts to "Evade Review," Lawyer Charges

In a letter to the court, the Uighurs’ lawyer, Sabin Willett, said the
government was deliberately seeking to change the facts of the case to
evade review at the high court.

He said similar legal tactics had been employed by the government in
earlier terrorism cases to avoid judicial review. Yasser Hamdi was
freed and sent home to Saudi Arabia in advance of a scheduled court
hearing to assess the legality of his detention. Convicted Al Qaeda
conspirator Jose Padilla was shifted from military detention to the
criminal courts on the eve of his petition urging the Supreme Court to
weigh the legality of his open-ended military detention without charge.

In the Uighur case, the government announced a series of settlement
offers from June to February, in an apparent effort to moot out the
case and retain a favorable appeals-court decision.

"If successful here, the executive [branch’s] familiar tactic of
imprisoning and delaying for years, then seeking dismissal at the last
moment to evade review, would make [the appeals court decision’s]
consequences permanent," Mr. Willett wrote to the court.

"Habeas Courts are Not Travel Agencies"

He added that the US government had placed his clients in a difficult
situation. "Habeas courts are not travel agencies," he said. "But
habeas has never required a successful petitioner to choose between
imprisonment and involuntary and indeterminate exile."

In her letter to the court, Solicitor General Elena Kagan told the
justices that the situation had changed markedly. "All of the
petitioners have had an option for release from custody other than a
judicial order of release into the United States," she said. Thus,
release into the United States is no longer the only possible effective
remedy for the Uighurs, she said.

"If [the Uighurs] have a claim to be brought to the United States in
the current circumstances, it is different from the one they presented
to the court below and to this court," she wrote.

The Supreme Court did not give the government everything it wanted. It
vacated the appeals-court ruling favoring the government and directed
that court to determine what further proceedings "are necessary and
appropriate for the full and prompt disposition of the case in light of
the new developments."

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