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. (For Monitor coverage of the Hamdi case, click here.) 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. (For Monitor coverage of the Padilla case, click here and here.)
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.”