Analysis

In the annals of the ongoing constitutional battle in America’s courts over the “war-on-terrorism,” Shafiq Rasul, Yaser Esam Hamdi, Salim Ahmed Hamdan and Lakhdar Boumediene already have made history — especially in the Supreme Court.  It now appears that Huzaifa Parhat could be the next detainee added to that list.

A member of a long-persecuted Chinese Muslim community, the Uighurs, Parhat is moving rapidly toward a courthouse showdown of major proportions.

 He is attempting to become the first Guantanamo Bay detainee to take the witness stand in a civilian courtroom inside the U.S., to make a personal case for freedom, and, more significantly, he is seeking actual release into the U.S. to live, at least temporarily, with a group of Uighurs in the Washington, D.C., area.

Both of those prospects are unsettling to the Bush Administration: Attorney General Michael B. Mukasey has made it very clear that the government will fight energetically against bringing any detainee into mainland U.S., for any purpose — a view that, among other consequences, has complicated the question of whether to close the Guantanamo prison operation entirely.

But something else of deep constitutional significance is lurking in Parhat’s court case.  The Justice and Defense Departments are using the case to test anew their theory that the U.S. government has very broad constitutional authority — beyond the reach of the courts — to “wind up” (or “wind down”) the process of detention in a way that would mean that individual detainees, even though found not to be enemies (Parhat’s situation), would remain for extended periods at Guantanamo in a kind of legal limbo.

That status also could await any detainees — Hamdan could be the first example – who get convicted of war crimes, but then finish out their sentences and then seek release.  (Pentagon officials already have signaled that they may hold Hamdan at Guantanamo when his sentence is completed early next year, and Hamdan’s lawyers have vowed to contest any such plan.  Hamdan’s fate, though, may not be settled before Parhat’s case has first tested the “wind up” argument.)

In response to the government’s argument that the Executive Branch has the sole constitutional authority to “wind up Parhat’s detention in an orderly fashion” (meaning, among other things, no release into the U.S. and perhaps a prolonged stay at Guantanamo), Parhat’s lawyers have mounted a sweeping constitutional claim of their own. They are arguing (in a filing last Friday, found here) that the government theory amounts to an unconstitutional suspension of the writ of habeas corpus. That is the same argument that led the Supreme Court, in Boumediene v. Bush on June 12, to grant the detainees a constitutional right to challenge in civilian court their captivity.

The heavy constitutional in-fighting over Parhat’s case — a habeas challenge being pursued under the authority of the Boumediene decision — has resulted, in part, from the almost coincidental fact that his was the first detainee challenge to captivity to go forward under the Detainee Treatment Act of 2005, among the 150 or so such challenges pending.  The D.C. Circuit Court ruled June 20, in the first DTA decision, that the government had not proved its claim that Parhat was an “enemy combatant” — the only basis for detention at Guantanamo.  The Circuit Court said he either had to be released, sent to another country, given a new Pentagon hearing on combatant status. or allowed to seek his release in the habeas proceeding (District Court docket 05-1509).

Parhat and the government agree that he should not be sent back to China, his home country, because of his apparently very real fears of further persecution. But the government has told the courts repeatedly it has been unable to persuade any other country to accept him.  And, until it does, the government has argued, he must remain at Guantanamo to “wind up” his detention.

The situation with Parhat is apparently not an isolated one.  An unknown number of detainees (the number could be substantial) want release, but do not want to be sent back to their home countries, for fear of torture or abuse.  Even if ruled not to be enemy combatants, the “wind up” theory would keep them in the Guantanamo prison for unspecified periods.

The government first made the “wind up” authority argument in federal court about three years ago, in another case involving the Uighurs (Qassim v. Bush, 05-497), but did not get a definitive ruling on it. However, the District judge handling that case, James Robertson, did comment in an opinion in December 2005 that “the support the government offers for its assertion of ‘wind up’ authority is unpersuasive and, in my view, actually cuts against the government’s position.” Even if some “reasonable wind up period of detention was allowable,” Judge Robertson said, a stay at Guantanamo that becomes indefinite is “unlawful.”  (The Justice Department is now relying heavily on another part of Judge Robertson’s ruling in the Qassim case — his separate conclusion that he could not order that the Uighurs be brought into the U.S. to appear in their habeas cases.)

The Justice Department brought back the “wind up” authority argument most recently in an Aug. 5 filing in District Court in Parhat’s case.  In the meantime, it had decided not to continue to press its claim that Parhat was an “enemy combatant” (although it continued to insist his initial detention was justified because of links to terrorism.)  In this latest filing, it told District Judge Ricardo M. Urbina: “Now that the exigency supporting Parhat’s wartime detention has abated, the question is whether the Department of Defense has the authority to wind up Parhat’s detention in an orderly fashion. It clearly does, for reasons rooted in history and logic….The power to wind down or how quickly the wartime detention of suspected enemy combatants, like the related power to capture such suspected combatants in the first place, is by ‘universal agreement and practice’ an ‘important incident of war.” It is specifically authorized, the document contended, by the 9/11 Resolution that Congress passed after the 2001 terrorist attacks.

The filing by Parhat’s lawyers last Friday continues to dispute that there was any basis for detaining Parhat in the first place.  But this document goes much further in disputing the “wind up” authority, if that means the practical scuttling of any right to release as a result of a habeas challenge.

The lawyers told Judge Urbina that, if he planned to make his decision on the issue of Parhat’s release, or on his right to release, based on any of the government’s claims about the Uighur’s alleged combatant status, Parhat should be brought into the U.S. to take the witness stand to refute all such claims.

Parhat, the reply brief contended, does not deny that the Executive has the authority under immigration laws to exclude him.  “What the Executive cannot do…is detain Parhat indefinitely pending expulsion or exclusion.”  Moreover, the brief argued, he is not seeking any remedy under immigration laws; he is seeking only a temporary release into the U.S. — with conditions the judge may wish to impose, such as regular reporting to officials — until he can be placed in a country other than China.

“Granting the relief sought by Parhat,” the brief said, “would not conflict with statutory law or usurp the immigration authority of the political branches. To hold otherwise would lead to the conclusion that habeas itself is an unconstitutional violation of separation of powers.”

But, if the immigration laws do come into play, and they frustrate any attempt to gain release as a habeas remedy, the brief contended, that would violate the Constitution’s Suspension Clause — the ban on suspension of the habeas writ.

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