Analysis: Detainees’ entry into U.S. in doubt

By Lyle Denniston
on Nov 24, 2008 at 2:54 pm

Analysis

With two colleagues energetically steering the case in opposite directions, U.S. Circuit Judge Karen LeCraft Henderson on Monday held the fate of 17 Chinese Muslim detainees at Guatanamo Bay in her hands.  At most, she provided a slight hint that she may disappoint their plea for early release. 

 The three-judge D.C. Circuit Court panel held a 65-minute hearing on a government appeal seeking to keep those members of the Uighur religious sect out of the U.S., leaving them at Guantanamo until they can be resettled. The government no longer considers them to be enemies, and has no plans to file charges against them, but has been unable to send them to a country where they would not face persecution.

Much of the questioning from the bench on Monday in Kiyemba, et al., v. Bush (08-5424) focused on the meaning of a 1953 decision, Shaughnessy v. Mezei, and its impact on the 17 Guantanamo prisoners whom a federal judge has ordered released into the U.S., to live here at least temporarily (that order had been stayed for the time being).  And it was the Mezei ruling — indeed, its very last sentence — that gave a clue to Judge Henderson’s leaning. 

Presiding, she ended the hearing by quoting that sentence, saying that an alien’s “right to enter the United States depends on the congressional will, and courts cannot substitute their judgment for the legislative mandate.”  Her only other statements during the hearing were a question about the relationship between habeas rights and immigration law and a query about whether the judge who ordered the detainees’ release had had a chance to explore what legal status the detainees would have if transferred to the U.S. (he had not).

By quoting from the Mezei opinion, Judge Henderson seemed to be suggesting that she views the Uighurs’ case to be mainly about immigration law and the authority that Congress has provided in that field to the Executive to decide when an alien may come into the country.  The Mezei case involved an East European alien who was temporarily at the entry center at Ellis Island and was challenging his permanent exclusion from the U.S.  The Court, splitting 5-4, ruled against Ignatz Mezei, saying that “courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.”

U.S. Solicitor General Gregory G. Garre made it clear at the very outset of Monday’s hearing that the government was relying heavily upon that precedent, arguing that District Judge Ricardo M. Urbina wrongly failed to follow that decision in ordering the release of the Uighurs into the U.S.

Circuit Judge Judith W. Rogers, however, promptly challenged Garre, suggesting that the 1953 ruling only dealt with Executive power when it was being used directly under the immigration laws, and did not address the government’s power in response to a constitutional habeas challenge.  She repeatedly pressed Garre on whether there was any other authority for keeping the Uighurs at Guantanamo once the Pentagon decided they were no longer “enemy combatants.”

Garre insisted that the government historically had power to hold prisoners it had detained until it could make other arrangements for them, and added that the President had “inherent constitutional authority” to decide who may enter the U.S.

Senior Circuit Judge A. Raymond Randolph moved early on to counter Judge Rogers, defending the government’s power to exlude aliens by arguing that “there are possibly 100 Supreme Court cases” that so hold, including the famous “Chinese Exclusion Cases” in the late 19th Century (precedents upon which the Supreme Court had partly relied in the Mezei decision).

Judge Randolph also suggested that the three-judge panel lacked any authority to apply constitutional limits to the government’s handling of the Guantanamo detainees, saying that prior rulings by the Circuit Court forbid such judicial second-guessing.  The judge also portrayed as extremely narrow the Supreme Court’s ruling last June in Boumediene v. U.S. establishing constitutional habeas rights for detainees.  “The most I get out of Boumediene,” he said, “is that, if an evidentiary mistake was made [in a detention case], some relief may be available.”

When the detainees’ lawyer, Sabin Willett of Boston, came to the lectern, Judge Randolph sought to probe the background of the 17 Uighurs, wondering whether they could be classified as terrorists not eligible to enter the U.S., because they had had military training in Afghanistan before their capture. Willett said the training was nothing more than learning how to assemble guns, something that “millions of Americans do legally.” The judge, however, countered that that was also the kind of training one gets at Parris Island — the Marine training basis. 

Willett’s primary emphasis was on the fact that the Uighurs, though no longer considered enemies, remain in a military prison where they have been for six years. Those, he said, are among the factors that make them different from Ignatz Mezei, who had “checked himself” into Ellis Island, rather than being taken there forcibly.  He was free to go elsewhere, Willett added, “but our clients are not.”

When Randolph responded that the Uighurs “could go to China,” their attorney said that would be “equivalent to a bullet in the head.” In fact, he said, they have no place to go other than to the U.S.
Willett said that, if a pilot of a military aircraft had taken the Uighurs to any other military base, inside the U.S., instead of to Guantanamo, they clearly would have had their rights fully protected. If the Supreme Court’s decision in Boumediene is to “have any meaning,” the attorney went on, it cannot “turn on a flight plan for a B-17.”

Judge Rogers was mostly supportive of the detainees’ side when their counsel was being questioned.  But when Solicitor General Garre was back at the podium, she sharply challenged what she called the “innuendo” in the government’s written brief suggesting that the Uighurs might still be dangerous individuals. “Let’s be very careful before we taint people without evidence,” she said.  Garre responded that the government was not saying that the Uighurs took their training at a terrorism-related camp, but the judge bluntly retorted: “Statements are made [in the brief], but when the District Court requested information [about a possible threat], the government elected not to offer any. That’s the record we have before us.”  Garre agreed: “We have to be very careful.”

(NOTE TO READERS: A hearing that had been scheduled for Monday afternoon on the government’s duty to disclose what it knows about claims of torture to a Guantanamo detainee when he was sent to Morocco has been postponed until Dec. 1.)