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New pressure in Uighurs’ cases

Seeking to put new judicial pressure on the Obama Administration to end the detention of Chinese Muslim (Uighur) detainees at Guantanamo Bay, lawyers on Friday asked a federal appeals court to hold Defense Secretary Robert M. Gates in contempt for doing nothing to free those prisoners — in one case, for nine months.

If Gates does not obey earlier court orders to take action, the two motions filed in D.C. Circuit Court argued, he should be brought into court promptly to go over possible punishment — including, as one suggestion, a fine of up to $500,000 a day until he obeys. The motion in Parhat v. Gates, et al. (Circuit docket 06-1397) is here.  A parallel motion, identical except for the facts, was filed in Abdusemet, et al., v. Gates, et al. (dockets 07-1509 and 07-1510), and is found here.

Secretary Gates, the motions argued, for months has been under orders from the Circuit Court, in the cases of five of the 17 Uighurs still at Guantanamo, to release them, transfer them, or start new military proceedings to reconsider prolonging their detention. The government has since dropped the last option, so only release or transfer remain, and even transfer is in serious doubt because the government has not found a country where the Uighurs (whose home country is China) could be safely re-settled.

The prior orders, the motions said, gave Gates “three options for compliance,” but “he was not given the option of refusing to comply with any of them.”  The question raised now, the filings added, “is whether the Secretary of Defense must comply with the order of an Article III court, or whether — as he has done for almost nine months [in one of the Uighur cases] — he may ignore an order at his pleasure.”

Since “no alternative course for vindication” of the court orders remains, Gates “should be directed immediately to purge himself of his contempt or face sanctions sufficient to compel his compliance.” the filing asserted.  The motions suggested that Gates be given five days to comply. By that time, he would have to “certify in writing” his obedience to the orders, the motions suggested.

The fate of the 17 Uighurs now appears to lie either with the judiciary — the D.C. Circuit and, perhaps soon, the Supreme Court — or with the Obama Administration.  While Attorney General Eric Holder told reporters last week that the option of bringing at least some of them to the U.S. remained open, no definite action has been taken.  (Only five of the 17 Uighurs are involved in the cases leading to the contempt filings.  The other 12, however, are similarly eligible for release, but they, too, remain at Guantanmo.)

  The motions filed Friday said that there will be “further requests for judicial review” — meaning either at the Circuit Court or at the Supreme Court — beyond the contempt motions.

The detainees covered by those motions are Huzaifa Parhat, ordered released or transferred by the Circuit Court last June 20, and four individuals whom the Circuit Court ordered released or transferred last Sept. 12.  The other four are listed as Abdusemet, Jalal Jalaldin, Khalid Ali and Sabir Osman. (Ali and Osman are no longer represented by the attorneys who filed the contempt motions, but would be affected by the outcome.)

In a ruling last month, the Circuit Court decided that no judge may order the government to bring any of the Uighurs into the U.S., even as a temporary measure.  That is the ruling that is going to be challenged further, according to detainees’ lawyers.  But, the motions filed Friday said, that ruling does not erase the Circuit Court’s earlier orders that the five must either be released or transferred.  The motions rely upon a key precedent of the D.C. Circuit for the proposition that the earlier orders remain binding in the Circuit. (That precedent was written by now-Senior Circuit Judge A. Raymond Randolph, who has been the key judge in much of the Circuit Court’s work on detainee matters.)

Nothing the Circuit Court has done, the motions contended, has removed the release-or-transfer orders from the books, and they thus remain binding orders and must be obeyed.

“There is no practical impediment to compliance,” the motions argued. “Whether he wants to or not, Secretary Gates can effect a release in the United States….Because there is no dispute about this, and no compliance is forthcoming, a finding of contempt is now warranted.”

The power of the courts, it said, “would be hollow if an Executive officer might disobey court orders without consequence.  That would render the Court a ‘mere board of arbitration, whose judgments and decrees would be only advisory.’ ” (quoting a 1911 Supreme Court decision, Gompers v. Bucks Stove & Range Co.)

Secretary Gates presumably will respond before the Circuit Court acts.

The Parhat motion for contempt is a renewed filing; an earlier motion was denied pending other proceedings.  The Abdusemet motion was not previously filed.