Wednesday, October 8, 2008

Uighurs Freed, But Now What?

UPDATE, 10/8, 11:40 CT: SCOTUS Blog reports that the D.C. Circuit stayed Judge Urbina's ruling so it could consider the administration's motion for stay pending appeal.  The order says nothing on the merits.

Judge Urbina of the U.S. District Court for the District of Columbia ruled yesterday that the government must release 17 Chinese Muslims, or Uighurs, from Guantantamo Bay and release them into the United States.  NPR reports here; the NYT reports here; the hearing transcript is here (by way of SCOTUS Blog; thank you), with the judge's oral ruling beginning on page 28 of the transcript.  The government has already appealed to stay the ruling, arguing that the court lacks authority to order the release of the Uighurs into the United States.

This dispute goes back to the Supreme Court's ruling in Boumediene v. Bush that Guantanamo detainees enjoy the privilege of habeas corpus, that the Detainee Treatment Act failed to provide an adequate and an effective substitute for the writ, and that therefore the Military Commissions Act (denying federal courts habeas jurisdiction over Guantanamo detainees) unconstitutionally suspended the writ.   

After Boumediene came down, the D.C. Circuit in Parhat v. Gates overturned a decision of the Combat Status Review Tribunal designating Parhat, a Uighur, an enemy combatant.  (The D.C. Circuit had jurisdiction in the case pursuant to the Detainee Treatment Act, designating the court as the review tribunal for CSRTs.  Parhat was not a habeas case.)  After Parhat, the government gave up on its claim that Uighurs at Guantanamo were enemy combatants (although it maintains that they are dangerous).  The government won't return them to China (where they would be tortured or killed), but no other country has agreed to take them.  Thus the problem: Where to send them?

Judge Urbina, expressing great frustration with the government's continued delay tactics in the case, balanced the Uighur's liberty interests against "separation-of-powers concerns":

Because the Constitution prohibits indefinite detention without cause, the Government--the Government's continued detention of Petitioners is unlawful.  Furthermore, because of separation-of-powers concerns do not trump the very principle upon which this nation was founded, the unaliable right to liberty, the Court orders the Government to release the Petitioners into the United States.

But why the U.S.?  Because if his authority to release into the U.S. is in doubt, the judge has even less authority to order release into another country, according to an exchange between the bench and government's counsel.

The case is an interesting and troubling case-study in individuals getting caught up in the constitutional interplay between the administration, Congress, and the Court, going back (at least) to the president's order establishing commissions for Guantanamo detainees and continuing through yesterday's ruling.  We'll update this as events unfold.

SDS

http://lawprofessors.typepad.com/conlaw/2008/10/uighurs-freed-b.html

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