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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.

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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.

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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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