In a split decision, the D.C. Circuit Court on Monday evening barred — until at least late November — the transfer of 17 Guantanamo Bay detainees to the U.S., where they were to be released.   A three-judge panel, with one dissent, granted the request of the Justice Department and Pentagon to postpone any transfer while the panel considers a group of government appeals arguing that the courts have no power to require detainees to be brought into the U.S.   The order, together with a statement by the dissenting judge, can be found here.

The panel ordered expedited review of an Oct. 7 order by U.S. District Judge Ricardo M. Urbina that the 17 Chinese Muslim Uighurs were to be brought to the mainland, and then released, under conditions that Judge Urbina planned to consider after the prisoners were in the country.  A briefing schedule was set on the combined appeals by the government, with the final papers due by Nov. 7, and with oral argument set before the panel on Monday, Nov. 24.

Thus, the transfer, which would have occurred on Oct. 10 under Judge Urbina’s ruling, will be delayed at least for more than six weeks.  It would not occur at all if the judge is overruled by the Circuit Court and that withstands a likely appeal to the Supreme Court by detainees’ counsel.

The case poses a major test of whether the U.S. government may continue to hold prisoners at Guantanamo Bay after it has decided that they are no longer “enemy combatants.”  That is the situation with the 17 Uighurs, who fled China because of persecution there, but were captured in Pakistan and turned over to the U.S. military by bounty hunters.  Although the Pentagon has decided not to make further claims that the 17 are enemies, the Justice Department in court filings has argued that they remain dangerous and that their move to the U.S. would pose a special risk.  Those statements appeared to differ with a government lawyer’s reply to Judge Urbina, when asked, that the government would offer no evidence of a security threat.

The government has contended that it has tried without success to arrange for the 17 individuals to go to any one of some 100 countries rather than their native China.  Until it could resettle them, it has argued, it has the authority to hold them at Guantanamo, and no court can order their transfer — anywhere, but especially to the U.S.

After Judge Urbina issued his order earlier this month, the Justice Department rushed to the Circuit Court and, the next day, obtained a temporary stay of the order.  In Monday’s new order, the Circuit Court dissolved that stay and issued a new one, to remain in effect “pending further order of the court.”

Circuit Judges Karen LeCraft Henderson and A. Raymond Randolph approved the order.  Circuit Judge Judith W. Rogers dissented.  The majority issued no statement; Judge Rogers filed a four-page dissenting opinion.

Judge Rogers argued that the government, in seeking a further stay of the prisoners’ release, had not satisfied any of the requirements for such a postponement.  And, the judge added, “the additional failure to present evidence of irreparable harm necessarily means that the government has failed to meet its burden of proof in seeking a stay.”

Judge Rogers said the Circuit Court panel should have rejected both of the goverment’s main arguments: that the constitutional doctrine of separation of powers leaves any decision on admitting the 17 into the U.S. solely to the President and Congress, and that U.S. immigration laws bar a federal judge in a habeas case from ordering that an alien not entitled to enter the U.S. be admitted.

The government’s legal position, Rogers wrote, “is flawed absent further guidance from the Supreme Court.”

On the question of whether the Uighurs pose a threat, the dissenting judge said “the government can point to no evidence of dangerousness, and regarding such record as exists in this court the government has not pointed to evidence of such risk.  Indeed such record as exists suggests the opposite.”  The Uighurs, she added, have not been convicted of any crimes and are no longer “even accused of any criminal wrongdoing.”

Under the panel’s briefing schedule, the Justice Department is to file its opening brief Oct. 24, the detainees’ response is due Oct. 31, and the government reply is due Nov. 7.  The hearing will be at 9:30 a.m. on Nov. 24.

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