Saying they fear at least another year in confinement for Guantanamo Bay detainees who are no longer being treated as enemies, lawyers for 17 Chinese Muslim prisoners asked the D.C. Circuit Court on Tuesday to move rapidly before the full ten-judge Court to review the detainees’ plea for release into the U.S. 

The petition for en banc rehearing asked the Circuit Court to lift a ban on the detainees’ release that was issued Monday by a three-judge Circuit panel.  But, in addition, the petition suggested the en banc Court move ahead with review on the merits without waiting for further action before the panel.  “The Court has discretion to determine the merits of these [six] consolidated appeals en banc in the first instance,” the petition said.

The three-judge panel has already ordered expedited review of the release order issued Oct. 7 by U.S. District Judge Ricardo M. Urbina, but the detainees’ counsel argued Tuesday that en banc review was likely anyway, so it should begin without further delay.

This is the first case involving the merits of a habeas case since the Supreme Court, in the June 12 ruling in Boumediene v. Bush, allowed Guantanamo prisoners to pursue a constitutional habeas challenge to continued imprisonment, the petition noted.

“En banc delays could add many more months of purely procedural imprisonment,” the petition said, noting prolonged delays in the Circuit Court’s handling of other Guantanamo cases over the past two years.   The 17 Chinese Muslim Uighurs ordered released by Judge Urbina should be freed in the U.S. while the appeals process goes on, the petition contended.

If the government is concerned about how the detainees might act if released in the U.S., the petition added, Judge Urbina can impose conditions on their release, including duties to report in and limits on their travel.

The petition said that hundreds of habeas cases are moving ahead in U.S. District Court, but, the petition argued, the Circuit panel’s stay of Judge Urbina’s order “has rewarded the Government for its utter failure to litigate facts before the district court.”

If the stay is not lifted, the filing went on, other appeals will be pursued in the Circuit Court, further delaying District Court action on habeas pleas.  “The situation presents both a substantive issue and a litigation-management issue of exceptional importance appropriate for prompt resolution by the entire Court,” it asserted.

The prisoners’ lawyers contended that the stay order issued Monday conflicts with a Supreme Court ruling in 1987, in Hilton v. Braunskill, creating a presumption in a habeas case that the prisoner should be released while a release order is appealed.

And, it argued, the stay order contradicts the Supreme Court’s Boumediene decision, which demanded prompt resolution of the detainees’ habeas challenges.

In a further argument, the petition said that lifting the panel’s stay order would “mitigate,” and perhaps make unnecessary, a motion that one of the 17 Chinese Muslims has filed in the Circuit Court asking it to hold Defense Secretary Robert Gates in contempt of court.  That detainee, Huzaifa Parhat, has been ordered released or transferred by the Circuit Court.  That ruling came June 20 and became final on Sept. 12, but so far no action has been taken to carry it out, according to the contempt motion.  If the panel’s stay order remains in effect, the Circuit Court would have to decide the contempt issue, the new petition filed Tuesday said.

“This motion [for contempt] is not about habeas relief, or whether the district court properly can order Parhat released into the United States.  It is about correcting [Gates'] defiance of this Court’s order,” the filing said. “Our system of laws does not tolerate the Executive’s defiance of the Judiciary, any more than the continued imprisonment of an innocent man….The ‘judicial power’ would mean nothing if an Executive officer was allowed to disobey a court order without consequence.”

The motion asks that Gates be held in “conditional” contempt, and given five days to obey the June ruling; if he has not done so after that time, it suggested he be brought into court for possible punishment — perhaps a sizeable fine — for each day that he does not comply.

(The contempt motion was actually filed last Thursday, but has just now been cleared for public release.  It can be found here.  Attached to the motion was a three-page declaration by one of the lawyers for the detainees, describing the conditions in which they are now held at Guantanamo Bay.)

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