Supreme Court to hear appeal of Uighurs still at Guantánamo

The Supreme Court Tuesday agreed to hear the case of Uighur detainees remaining at the Guantánamo prison camp. Their release into the US has been blocked by the White House and Congress.

By , Staff writer of The Christian Science Monitor

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    In this June 1 file photo reviewed by the US military, Chinese Uighur Guantanamo detainees, who at the time were cleared for release but had no country to go to, show a home-made note to visiting members of the media.
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The US Supreme Court agreed Tuesday to hear the case of a group of Guantánamo detainees, Uighurs from China, whose judicially-ordered release into the United States has been blocked by the White House and Congress.

The case, Kiyemba v. Obama, is a potential landmark, pitting the power of the judiciary to vindicate constitutionally-protected habeas corpus rights against the power of the White House and Congress to police US borders and enforce immigration laws.

The case involves members of the Uighur ethnic group of western China who have been held for eight years at the US terror prison camp at Guantánamo Bay, Cuba. In October 2008, a federal judge ordered the men released into the US pending efforts by the US government to find a suitable third country for resettlement.

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The release order came in answer to the men's habeas corpus petition in which they claimed they were being illegally detained by the US and that they were not, and never had been, enemy combatants or Al Qaeda allies. Habeas corpus grants US prisoners the right to challenge the legality of their detention before a neutral judge.

Government lawyers did not dispute the judge's finding that the men were being illegally detained, but insisted that a judge does not have the power to order the executive branch to accept into the US someone it does not wish to admit.

A federal appeals court in Washington agreed with the White House, reversing the portion of the release order that directed the detainees to be brought to the US.

Instead, the men remained within the prison camp at Guantánamo. US officials say they enjoy the least restrictive conditions of confinement possible there, but their lawyers argue that once a judge orders someone released from illegal detention, they should be set free.

Some Uighurs resettled in Bermuda

The Supreme Court was set to decide whether to hear the Uighurs appeal last June, but took no action amid press reports that all or most of the detainees might soon be relocated to third countries. Normally, such detainees would simply be returned to their native country, but the Uighurs are an oppressed minority in China and fear abuse from authorities there.

Four of the original 17 Uighur detainees were transferred to Bermuda in June. Solicitor General Elena Kagan informed the high court in a Sept.23 letter that the south Pacific island of Palau had agreed to accept 12 of the remaining 13 Uighurs.

But only six of the 12 Uighurs had agreed to resettle in Palau, Ms. Kagan's letter said. These six could be released as early as Oct. 1, Kagan said. She added, "The date on which the plane is scheduled to depart Guantanamo for Palau is classified."

There has been no indication that any Uighurs have already been transferred to Palau.

The status of the 13th Uighur, Arkin Mahmud, is unclear. He has not been offered resettlement in any country, according to court documents.

This unresolved situation is significant, the Uighurs' lawyers say, because it means the case is not moot. The controversy will continue, they say, until all 17 Uighurs are resettled.

Judiciary vs. executive powers

The underlying legal dispute raises substantial constitutional issues. The Uighurs' lead lawyer, Sabin Willett, argues in his brief to the court that an earlier Supreme Court decision establishes the authority of federal judges to order the conditional release of any Guantánamo detainees being held illegally.

It isn't enough for the executive branch to inform the judge that it is working to find a country for resettlement. The habeas right is vindicated only upon actual release from illegal detention, he says.

Solicitor General Kagan counters that the Uighurs have already obtained all the relief they are due since they are "free to leave Guantanamo Bay to go to any country that is willing to accept them."

"In the meantime, they are housed in facilities separate from those for enemy combatants under the least restrictive conditions practicable," she says in her brief.

On the broader issue, the decision to release the Uighurs into the US rests exclusively with the executive branch and Congress, Kagan says. "There is a fundamental difference between ordering the release of a detained alien to permit him to return home or to another country and ordering that the alien be brought to and released in the United States," she writes.

Mr. Willet argues that judges presiding over habeas cases have a duty to do more than accept representations that the government is "attempting to relieve its own unlawful imprisonment."

Willet writes: "Release into the United States of an alien without immigration status poses logistical difficulties, to be sure, but such difficulties are nothing new, and here they are entirely of the executive's own making."

[Editor's note: The original summary for the story included an incorrect date.]

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