Early look at detainees’ case
on Sep 21, 2009 at 4:48 pm
The Supreme Court, at its first Conference after the summer recess, will consider the case of nine Chinese Muslim Uighurs who are seeking their release from the U.S. military prison at Guantanamo Bay, Cuba, according to the Court’s electronic docket.  The Conference is scheduled for Sept. 29, in advance of the formal opening of the new Term on Oct. 5. If any cases are granted for review, that probably will be announced before the Term opens.
The Uighurs’ case (Kiyemba, et al., v. Obama, et al., 08-1234) has been pending at the Court since early April; as yet, the Justices have taken no action on it, without explanation. Speculation has suggested that the Justices might be waiting to see if the 13 men were resettled away from Guantanamo. All 13 are seeking release to live in the U.S., but that has been blocked both by the D.C. Circuit Court and by new legislation enacted by Congress. The Circuit Court ruled that courts have no authority to orders transfers out of Guantanamo.
Earlier this month, the Uighurs’ lawyers notified the Court that four of the 13 have been sent to Bermuda to live, and that negotiations have proceeded on the possibility that eight of the nine others will be accepted for resettlement on the Pacific island of Palau. (The letter, dated Sept. 10, can be found here.) However, the letter said that a thirteenth individual, Arkin Mahmud, has not been offered refuge by any nation.
Although all 13 have been technically cleared for transfer out of Guantanamo, the letter said that no date has been set for the release of any of them, and “actual freedom for any remains subject to ongoing diplomacy with Palau and the discretion of the political branches at home. We understand that the Executive will shortly report the details of the potential transfers to Congress. We do not know what will happen if Congress raises objections. Thus, the letter argued, “the case is not moot as to any” of the Uighurs, and will not become so for Mr. Mahmud. Their lawyers renewed the Uighurs’ “urgent request that this Court grant” review, noting that the men have been in captivity for nearly eight years.
News accounts recently have reported that Palau’s government will accept six of the nine remaining at Guantanamo. But the Uighurs’ lawyers told the Court that Palau did not make a resettlement offer to Mr. Mahmud. “There is no current expectation of his release from the Guantanamo prison,” the letter said.
The Justice Department has opposed Supreme Court review of the Uighurs’ petition, arguing that the Court should allow diplomacy to work to determine their resettlement.  The Department contends that the 13 have already obtained legal relief in their habeas challenge to captivity, because the government has concluded that they no longer represent a terrorist threat.
If the remaining Uighurs are released from U.S. custody to be re-settled in other countries, the question of the U.S. government’s power to decide for itself whether to release the captives for re-settlement anywhere is sure to return to the Court, because other detainees are challenging transfers without their consent. Some of those challenges are already pending at the D.C. Circuit Court.
