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Detainees’ entry to U.S. blocked, for now

UPDATED 7:05 p.m.

The D.C. Circuit Court blocked, for at least eight days, the entry of 17 Guantanamo Bay detainees into the U.S., putting on hold a federal judge’s order for their release.  In a three-paragraph order, the Circuit Court said it was issuing a stay only to give it more time to consider the Bush Administration’s not-yet-filed plea for a delay of the entry until it can pursue a full appeal.  The Court said its order “should not be construed in any way as a ruling on the merits” of the issue of a longer delay pending the appeal.

The Court, accepting a schedule suggested by the Justice Department when it sought a delay, set Friday as the deadline for the Department to file its “motion for stay pending appeal,” next Tuesday for the detainees’ response, and Thursday, Oct. 16, for the Department’s reply.

The stay order was issued by Circuit Judges Karen LeCraft Henderson, A. Raymond Randolph and Judith W. Rogers.

The following reports were posted at various points earlier Wednesday.

Lawyers for 17 Chinese Muslim detainees at Guantanamo Bay argued Wednesday afternoon that the U.S. government is seeking to ensure that those captives remain at the Navy prison indefinitely by portraying them as terrorists, thus undermining any chance that another country would accept them as refugees.

In a brief opposing any delay of a federal judge’s order Tuesday that the 17 prisoners be released into the U.S. later this week, the attorneys accused the government of resorting to “scare tactics in the form of innuendo and unsubstantiated, exaggerated, and false rhetoric aimed at painting [the Uighurs] as dangerous men, including the astonishing assertion, never before made in three years of litigation through all levels of the federal system, that these men were preparing to ‘wage terror on a sovereign government.’ Nothing in the record justifies that statement.”

“The fact that our Government has said that in a public pleading guarantees that no government will accept them from Guantanamo,” the detainees’ lawyers argued.

The Circuit Court is considering a Justice Department request to temporarily block the detainees’ transfer from Guantanamo to Washington, so that the government can pursue a fuller challenge to U.S. District Judge Ricardo M. Urbina’s release order. The Department has asked the Circuit Court to act today, and has indicated that it will take issue on to the Supreme Court if necessary in hopes of getting a delay.  (Judge Orbina on Wednesday issued his formal order; it can be found here.  The judge has also released a 17-page opinion explaining the reasons for his action. A slightly revised version, more legible, was released Thursday morning; it is here.

In the meantime, the D.C. Circuit turned down a plea by detainees’ lawyers, made earlier Wednesday (and discussed below), seeking a particular panel of the Court to hear the government appeals.  The denial was not explained.


Seeking to get an appeal panel that has already shown skepticism toward the government’s handling of Chinese Muslim detainees at Guantanamo Bay, lawyers for those 17 prisoners asked the D.C. Circuit Court on Wednesday to assign those same three judges to hear the Bush Administration’s new appeal on the captives’ legal rights.  In an emergency motion, the attorneys requested the panel that on June 20 was strongly critical of the government’s reasons for detaining one of those prisoners, ruling that his detention had not been justified and declaring that he was entitled to seek release from Guantanamo.  Only that panel, the motion argued, is familiar with the dispute that has now led a federal District judge to order that the 17 individuals be released into the U.S., to live at least temporarily until they could be resettled somewhere other than China.

The Justice Department on Tuesday appealed that order and asked the Circuit Court to block it temporarily as it pursues appeals in the lead case, Kiyemba v. Bush (08-5424), and five related cases.

The detainees’ counsel are expected to formally oppose a stay of the release order, in papers to be filed at the Circuit Court shortly.  The Justice Department asked that Court to act today, and said a stay request would be made in the Supreme Court if the Circuit Court denies one. The Tuesday order by District Judge Ricardo M. Urbina requiring that the 17 Uighurs be brought to Washington said that must be done in time for a Friday morning hearing. (Judge Urbina on Wednesday ordered the U.S. Marshals Service to take custody of the 17, and house them until they are taken to court for that hearing.)

In the new motion on Circuit panel assignment, detainees’ lawyers argued that only the earlier panel could cut through new allegations by the Justice Department that the 17 are terrorists — claims that the detainees’ lawyers said “have never been made in any court before, anywhere” and are not supported by anything in the records of their cases.

Sitting on that earlier stage of the ongoing courthouse battle over the legal fate of the 17 prisoners known as Uighurs, who are natives of China who claim persecution there of their sect, were Chief Circuit Judge David B. Sentelle and Circuit Judges Merrick B. Garland and Thomas B. Griffith.  Judge Garland wrote the unanimous decision in Parhat v. Gates (06-1397).  That decision can be found here.

That ruling, the detainees’ counsel asserted Wednesday, “evidences the panel’s close — indeed granular — attention to each item of the record, classified and unclassified, that the government relied on to assert enemy combatant status….Parhat later became final, a mandate issued, and it is today the law of the circuit.”

The Justice Department has since told the courts that it will not seek to maintain “enemy combatant” status for the other 16 Uighurs, in addition to Huzaifa Parhat.

If another panel were assigned to hear the new government appeals, the detainees’ lawyers suggested, it would run the risk of a decision conflicting with the Parhat ruling.  They also contended that the government has not complied with that ruling, and thus may be at risk of contempt of court — a matter that the June panel would consider.

They also argued that having the same panel would allow the Circuit Court to act more speedily on the new government appeals.