Saturday, November 8, 2008

Latest on the Uighurs

The government filed a reply brief in the D.C. Circuit in the case of the Chinese Muslims detained--but determined not to be enemy combatants--at Guantanamo.  (Thanks to SCOTUSblog for the link to the reply.)  I've posted previously on this here, here, and here.

The government's arguments in large measure reply to arguments in an amicus brief on behalf of the Uighurs filed by law professors.  (Thanks to the Center for Constitutional Rights for the link to this brief.)

The law professors distinguish Shaughnessy v. Mezei:

The lesson of Mezei, then, is that aliens who come to our shores on their own, who seek to enter for the first time, and who fall under some specific ground such as the security-related grounds of inadmissibility invoked in Mezei and Knauff, may be denied "admission" to the United States under our immigration laws and may be detained in conjunction wtih that denial.  But the case does not stand for the proposition that aliens who are forced into the custody of the United States against their will, and whose detention has been found unlawful, cannot be granted release from detention in the United States.

Law professors also argue that the government's separation-of-powers argument--that the political branches, not the courts, have constitutional authority over immigration, an "area where foreign policy and national security intersect"--was decided (against the government) in Clark v. Martinez, a case involving aliens who had never been granted admission to the U.S.

The government's reply brief addresses the Mezei argument on pages 6 to 13 (brief page numbers); it addresses Clark on pages 20 to 21 (brief page numbers); it addresses separation-of-powers more generally in previous filings (linked in my previous posts, above).  The government maintains that it can detain the Uighurs indefinitely, even if they're not enemy combatants, based on the political branches' plenary authority over immigration under the Constitution.   

The government's reply is the last scheduled brief in the case.  Oral argument is scheduled for November 24. 

SDS

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