Federal Court Hearing Tuesday for Uighur Gitmo Detainees

In June, the Supreme Court ruled that the detainees at Guantanamo have the right to challenge their detention as enemy combatants and to have their challenges heard quickly.

Also in June, the D.C. Circuit Court of Appeals ruled that Huzaifa Parhat, one of the Uighur Chinese Muslims held at Gitmo, was not an enemy combatant and therefore entitled to seek his freedom.

Four months later, The New York Times reports, no hearings have been held. The Bush Administration now argues that the judiciary cannot order the release of detainees because only military officials have the authority to end wartime detentions.

On Tuesday, the detained Uighurs, whom the Government is no longer claiming are enemy combatants, will get another hearing in Court. [more...]

Despite being cleared for release, they are still at Guantanamo because the Government argues no country will take them. The Times reports that at Tuesday's hearing, their lawyers will ask they be released into the United States:

On Tuesday, a federal district judge, Ricardo M. Urbina, is to hear an urgent claim by lawyers for the Uighurs, that they should be released immediately into the United States since they are no longer considered enemy combatants.

The government argues that they should be held at Guantánamo until another country can be found to accept them. In filings, the Justice Department lawyers make expansive arguments that, while Judge Urbina can hear the Uighurs’ case, he cannot order their release. The judiciary “simply has no authority” to release the Uighurs into the United States, one filing said.

The Justice Department said the government’s executive branch, not the judicial branch, has the authority to conclude military detentions, as it has in prior wars. It noted that in World War II “no court ever questioned that it was solely for the political branches — not the courts” to decide how Italian prisoners of war were handled.

That's the only argument the Government has, and I hope it doesn't work. In 2001, the Supreme Court ruled in Zadvydas v. INS :

A statute permitting indefinite detention of an alien raises a serious constitutional problem. The Fifth Amendment's Due Process Clause forbids the government to deprive any person of liberty without due process of law. Freedom from imprisonment -- from government custody, detention, or other forms of physical restraint -- lies at the heart of the liberty that Clause protects. Government detention violates that Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow non-punitive circumstances, where a special justification, such as harm-threatening mental illness, outweighs the individual's constitutionally protected interest in avoiding physical restraint.

The Court also ruled in that case:

But once an alien enters the country, the legal circumstance changes, for the Fifth Amendment's Due Process Clause applies to all "persons" within the United States, including aliens, whether their presence in the United States is lawful, unlawful, temporary, or permanent.

As I wrote here in 2006:

In other words, the Due Process clause applies to citizens, aliens and undocumented residents , whether here lawfully or unlawfully- so long as they are physically present within the country.

The Chinese are at Guantanamo. They have been determined not to be enemy combatants and to be innocent of wrongdoing. They had been sold by bounty hunters to the U.S. They want to stay in the United States. No other country will take them.

The Court continues: "Once removal of a deportable alien is no longer reasonably foreseeable, continued detention is no longer authorized."

In other words, they should be granted asylum.

It's bad enough that we detain those suspected of terrorism for four years without charges or lawyers. But to detain the innocent? Bush has stooped to a new low with this case.

It's been six years now. Enough. Release the Uighur detainees.

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    A couple comments (none / 0) (#1)
    by scribe on Sun Oct 05, 2008 at 07:39:30 PM EST
    1.  TL:  When they were released, I had sent you a link to the briefs, posted through the SCOTUSBlog site.  I can't find them now, but they are still there.  That site has been doing yeoman service on the detainee cases and all the appellate twists and turns, and deserves no small amount of credit for it.

    The briefs were quite striking, in making the case not only about Zadvyas but also about the implications of ruling against the detainees.  Ruling against them would, in whole, make the existence of a military-enforced dictatorship actual and render habeas wholly optional, at the discretion of the military.

    2.  I'm looking at the cases coming up on the Supreme Court docket this week. I note that the appeal from the Ninth Circuit over the injunction which prohibited the Navy from using certain sonar in exercises because its use would violate other, environmental, laws is on the list for argument, Tuesday or Wednesday.

    That case is likely to be as important as any other this term, as the central issue is whether the Court even has the power to enjoin government (military) conduct, when the government decides that the national security requires that conduct, law to the contrary notwithstanding.  IF you have eyes, you can see the issue's importance.  

    No surprise, either, at the speed with which this case not only reached the Court, but also how it was taken on the first shot.

    3.  I've a case pending in federal court where the judge has dallied on ruling on a couple slam-dunk-clear motions for going on four months now.  No political issues, no deep constitutional questions.  Just a money dispute.  A colleague once had a case before this same judge where he sat on a quite-clear summary judgment motion for three years.  

    Here's hoping the D.C. judge hearing the detainees' case has the sense to reserve decision and wait until November 5 to issue it.  You don't get to be a federal judge without having been a political player;  issuing a decision one way or the other in this case before the election will be placing a big thumb on the scales and would be wholly out of line.  As I see it (and anyone whoe reads this site knows I have been screaming against the whole of the admin's detention policy since minute one), these detainees, while they do not belong in custody at all, having been in custody for years now, can wait another month.  The stakes in this election are too high.