Wednesday, February 18, 2009

Guantanamo Detainees in Limbo after Court Ruling

The D.C. Circuit ruled today that the lower court lacked authority to order 17 Chinese Muslims, the Uighurs, held at Guantanamo Bay into the United States.  I most recently posted on the Uighurs here; the Center for Constitutional Rights collects all the documents here.  (I link to the documents through the CCR web-site below.  Many thanks to CCR.)

A bit of history: Judge Urbina (D.D.C.) last fall granted the Uighurs' habeas petition, ruled that the administration could no longer hold them as enemy combatants, and ordered their release into the U.S.  (Why the U.S.?  Because no other country would take them, and it seemed certain that China, their homeland, would torture or kill them.)

The Bush administration sought and won a stay of Judge Urbina's order and appealed late last year.  The administration argued on separation-of-powers grounds that Judge Urbina lacked authority to order the Uighurs into the U.S., even though the administration no longer classified the Uighurs as enemy combatants.  (The administration considered them dangerous--and thus didn't want them in the U.S.--only because it feared that they may be angry that the U.S. wrongly held them for so long.  Ugh.)  The administration also made some quite vague claims in its brief (pp. 27-29) and at oral argument (pp. 11-12) that the Uighurs had previously engaged in "terrorist activities" and therefore would not qualify for admission under immigration laws.  (And anyway they never applied.)

The Bush administration's positions left the Uighurs in limbo--they were not enemy combatants, but they had no place to go--and handed the Obama administration a significant headache.

The D.C. Circuit just made it worse.

The three-judge panel--Judges Henderson and Randolph in the majority, and Judge Rogers in concurrence--ruled that Judge Urbina lacked authority to order the Uighurs released into the U.S.  The court ruled that decisions about who to admit belong to the political branches, and the courts lack authority to override.  The court analogized the case to Shaughnessy v. Mezei (1953), in which the Court ruled that an alien held at Ellis Island and denied entry under U.S. immigration laws (and with no other place to go) had not been deprived of any constitutional rights. 

Judge Rogers in concurrence wrote that the Uighurs must be held under U.S. immigration law--because the administration gave up the claim that they were enemy combatants, and there was no other reason to hold them--and that Judge Urbina's ruling was premature in that he failed to determine whether immigration laws provided a valid basis for detention. 

The ruling leaves the Uighurs in a no-man's land: They are no longer held as enemy combatants, and they have not applied--and therefore are not considered--for immigration.  (Even if they had applied, the Bush administration asserted--and the court seemed to accept--that they would not qualify, because they had previously engaged in "terrorist activities.")  But yet they have no place to go.

While the circuit court panel seemed only to add to the problem, it also set out a roadmap for solving it.  The Obama administration should drop the appeal and review these cases now to determine on an individual basis whether each Uighur had, in fact, engaged in "terrorist activities."  For those that have not--perhaps the majority or even all of them, given the apparent lack of evidence--it should process them through the immigration system and admit them to the U.S.; for others, it should find a home for them.  Quickly.

SDS

http://lawprofessors.typepad.com/conlaw/2009/02/guantanamo-deta.html

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