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First detainee plea to come to U.S.

In the first effort to win release into the U.S. — to the Washington, D.C., area — of a Guantanamo Bay detainee, lawyers for a member of a Chinese Muslim minority have asked a federal judge to order the Pentagon to free him immediately.  The individual is Huzaifa Parhat, whose case is the furthest along of any of more than 200 Guantanamo prisoners who are challenging their detention.

Last month, the D.C. Circuit Court, in the first ruling of its kind, decided that the Pentagon had failed to justify continuing to hold Parhat. (A post describing the ruling can be read here) It said that he had the option of seeking his release in District Court, but did not itself order that. In fact, it did not decide directly that it had the power to order him freed, but it said a District Court judge had that authority,  It also said that, among other reactions to its rulings, the government might seek to transfer Parhat to another country, or might try to hold a new Pentagon review to offer any new evidence it might have to continue holding him.

Parhat’s attorneys did not wait for the Pentagon to take the first step, moving instead on Wednesday to obtain a prompt hearing on his plea that he is legally entitled to release, and then to order him freed under “such conditions for reporting and monitoring as are reasonable in the circumstances.” Parhat should be brought to the court for that hearing, his lawyers asserted.

The documents were cleared by a court security officer for release Thursday. The motion for release, with a supporting legal memorandum, can be found here. A separate motion for a final ruling on his habeas application, seeking release, was also filed, along with a legal memorandum.

His lawyers said in one of the filings that they expect the government “to vigorously oppose” the plea for an immediate ruling on his right to be released. They also said that they expected it would be “time-consuming” for a District judge to rule, followed by “potential appeals.”  But they explicitly asked that he be released while his challenge goes forward in court, as a form of “interim relief.”

By coincidence, the papers were filed two days after Attorney General Michael B. Mukasey, in a major speech on detainees, urged Congress to pass a new law barring any judge from issuing an order “that an alien captured and deained abroad during wartime be admitted and released into the United States.”  (It does not appear that Congress will act quickly on that request.)

Parhat’s attorneys said that there is a community of about 250 individuals of Chinese ethnic Uighurs — like Parhat — living in the Washington area, and is in a position to help him “negotiate the linguistic and practical challenges” of being in America, and help him understand his obligation to meet any conditions imposed on him while he awaits a ruling on his legal challenge.  The attorneys said the judge may want to order regular reporting to various government agencies, and to impose restrictions on his travel.

Attached to the papers were sworn statements by Uighurs who live in the Virginia suburbs of Washington, D.C.  One was by Rebiya Kadeer, whowas jailed in China for years, including two years in solitary confinement. She was released in March 2005, and now has refugee status in the U.S.  She has founded the International Uyghur Human Rights and Democracy Foundation. Another filing was by Alim Seytoff, general secretary of the Uyghur American Association, who is a permanent resident alien.

Although the Circuit Court, in ruling that Parhat was not legally designated an “enemy combatant,” had said the Pentagon might want to reopen a new Combatant Status Review Tribunal on that question, Parhat’s lawyers said that he has been cleared for years for release from Guantanamo, but has not left — after more than six years — because “no safe country has been found to take him.”  Because he is a Uighur, a persecuted minority in China, he cannot be sent there, his lawyers noted.

“The government has not shown that it can overcome the [Circuit Court’s] non-combatant determination,” the motion for release said. “It cannot, for the simple reason that Huzaifa Parhat has never himself been, nor affiliated himself with this Nation’s enemies.”

The motion for a final ruling granting his habeas plea said that “all other potential remedies for Parhat’s grinding and illegal imprisonment were exhausted years ago.  He is entitled to relief, and there is no relief — except an order that he be released into the continental United States.”

In seeking immediate release into the U.S. as a temporary measure, his lawyers stressed that they were not asking that he be formally admitted under immigration law, but rather be “paroled” into the country (an interim measure) to await the outcome of his habeas case.

Parhat is one of 17 Uighurs who now have habeas challenges pending in District Court in Washington.  They are all assigned to Judge Ricardo M. Urbina, but are also included among some 200 cases in which Senior Judge Thomas F. Hogan is coordinating the cases for processing.  The new motions by Parhat’s lawyers were filed with both judges, but presumably will be acted upon by Judge Urbina.

It is possible that the outcome of Parhat’s release plea could affect the fate of the other 16 Uighur detainees, most or all of whom have been held on the same basis as Parhat: the government claim that they had ties to an organization considered to be terrorists. The Circuit Court found the claims were not supported by the government’s evidence.