The US Supreme Court on Monday declined to take up the plight of five detainees at Guantánamo who were ordered released in 2008, but still remain at the detention camp in a dispute over whether they could be transferred to the US pending their resettlement to another country.
The action marks the second time the high court has turned back an appeal by the same group of men, all members of China’s persecuted Uighur minority. Last year, the justices refused to hear the Uighurs’ case after the government revealed that all of the men had received at least two offers for resettlement in a third country, but had rejected them.
Justice Stephen Breyer cited the same issue in the high court’s refusal Monday to take up the case. “Under present circumstances, I see no government-imposed obstacle to petitioners’ timely release and appropriate resettlement,” he wrote in a two-page statement. The comment was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, and Sonia Sotomayor.
The five Uighurs have been held without charge at Guantánamo since 2002. Normally, detainees released from Guantánamo are sent to their home country. But because the Uighurs are a persecuted group whose members might be subject to torture or other punishment if returned to their native western China, the US government sought to find another appropriate country – other than China – for resettlement.
Why were the men at Guantánamo?
The five men were among 22 Uighurs who were captured and sold to US forces in Afghanistan by bounty hunters in 2002. The US military transported the men to the prison camp at Guantánamo. They have no known connection to Al Qaeda or the Taliban.
Eventually, volunteer lawyers in the US exposed the situation and the US government conceded that the Uighurs were neither enemy combatants nor a danger to US national security.
The US negotiated the resettlement of five of the Uighurs in Albania in 2006. But 17 Uighurs remained in limbo at Guantánamo.
Who controls access to the US?
The Bush administration assured the federal judge in the case that it was working diligently to locate an appropriate country willing to resettle the men, but after significant delays, the judge ordered the government to bring the Uighurs to his courtroom.
That’s the key issue in the latest appeal: Does a federal judge have the constitutional power to order the government to bring foreign nationals into the US? No, said the Obama and Bush administrations.
The US Circuit Court of Appeals for the District of Columbia agreed with the government, ruling that the captive Uighurs, as foreign nationals held in overseas detention, had no right to gain access to the US. Immigration and matters of foreign policy are for the political branches to decide, not the judiciary, the appeals court said.
Resettlement options for the Uighur detainees
The Supreme Court agreed to examine the case last year, but while the appeal was pending, the administration revealed that it had located countries willing to accept the Uighurs.
The five remaining Uighurs rejected a resettlement offer from Palau and from an unidentified second country.
The rejection undercut the five Uighurs’ earlier argument that their only alternative to indefinite detention at Guantánamo was release in the US.
In light of the new developments, the Supreme Court in 2010 sent the case back to the lower courts to determine what further proceedings were “necessary and appropriate” to resolve the case.
The appeals court reinstated its earlier ruling, barring transfer of the Uighurs to the US.
Latest appeal: judicial authority and the separation of powers
In urging the Supreme Court to take up the case once again, lawyers for the Uighurs argued that the appeals court ruling substantially undercuts the power of federal judges under the Constitution to decisively resolve cases.
The appeals court ruled that since the executive branch holds the power to negotiate the Uighurs’ resettlement and controls the entry of foreign nationals into the US, a federal judge cannot order the government to bring the men to the US.
Lawyers for the Uighurs said the appeals court’s ruling violated the separation of powers and the concept that the federal judiciary has the authority not just to rule on cases, but to definitively decide them. Once a court rules, it is the obligation of the executive branch to follow the law as declared by the judiciary, they said.
“The court of appeals turned that structural principle on its head,” wrote Sabin Willet in his brief on behalf of the Uighurs. “By transferring remedial power to the executive and barring the district courts from issuing anything other than exhortations to diplomacy, [the appeals court] reconfigured the judiciary into an arm of the executive.”
The Obama administration countered that the Uighurs have won their case and are no longer being detained as enemy combatants. All that remains, the government said, is the arrangement of resettlement from Guantánamo to a third country.
“The court of appeals correctly ruled that petitioners’ refusal to accept resettlement in other countries does not entitle them to a court order requiring the government to bring them into the United States,” wrote Deputy Solicitor General Edwin Kneedler in his brief.
This case does not raise far-reaching questions of judicial authority and the separation of powers, Mr. Kneedler said.
“The only question here is whether these particular petitioners are entitled to be brought into the United States and released when the government has agreed not to return them to their home country but to arrange their resettlement in a safe third country,” he wrote.