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U.S. defends indefinite detention power

The Justice Department, in the final filing before the D.C. Circuit Court examines a government plea to keep Guantanamo Bay detainees out of the U.S., argued on Friday that the Executive Branch has authority to hold aliens in detention even if they are not considered enemies of the U.S.  And, it added, “even if the detention is indefinite, it is still lawful.”

The document, a reply that concludes briefing on whether a federal judge was wrong in ordering the release into the U.S. of 17 Chinese Muslim Uighurs now at Guantanamo, sought to buttress a Pentagon and State Department decision to keep those 17 confined as long as it needs to arrange for them to be re-settled in another country.  A three-judge panel is weighing a government challenge to an Oct. 7 ruling by District Judge Ricardo M. Urbina that the 17 prisoners — no longer considered to be enemies of the U.S. — are entitled to release under federal habeas law, and that they must be brought to the U.S. to live here at least temporarily.  They cannot safely be returned to their homeland, China, because of past persecution of their Muslim community there.

The reply brief put new emphasis on the assertion that “the Government retains the sovereign authority, independent of the authority to detain enemy combatants, to hold [the Uighurs] incident to barring them from the United States, and pending efforts to resettle them elsewhere….It is fully lawful for the Government to hold [them] on this second, independent legal basis.”

Nothing in the Constitution, the Department asserted, undercuts “the plenary authority of the political branches to bar aliens from reaching our shores and to exclude those who do.”

Since the Uighurs “may be lawfully detained incident to that distinct power,” and since they “do not wish to be released in any country that is currently willing to admit them, there is no basis under [the Supreme Court’s June 12 decision in] Boumediene [v. Bush] for imposing any habeas remedy,” the brief argued. (emphasis in original)

The Department rejected a claim by detainees’ counsel that the government has given up on trying to find a country that will accept the 17 Uighurs because, the prisoners’ lawyers had contended, Justice Department lawyers insisted that those 17 remain dangerous even if not considered enemies any longer.  Added to the reply brief was a letter from the State Department’s legal adviser, John B. Bellinger III, saying that his agency “is actively continuing its efforts to resettle” them, and that negotiations “are ongoing.” 

The three-judge panel, considering a series of government appeals (the lead case is Kiyemba v. Bush, 08-5424), is to hold a hearing on Nov. 24.  The full nine-judge Circuit Court, however, is now considering a plea by the 17 Uighurs to take the case from the panel and decide it en banc.