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A new use of Uighurs ruling

Within hours after a group of Guantanamo Bay detainees asked the Supreme Court to overturn a recent federal appeals court ruling against the prisoners’ rights (see this post), the Justice Department made a new use of that ruling — this time, to try to head off a contempt-of-court claim against Defense Secretary Robert M. Gates.  The development came in two filings in the D.C. Circuit Court, in cases involving five of the 17 Chinese Muslims (Uighurs) who remain at Guantanamo although no longer considered enemies by the Pentagon.  The filings can be found here and here.

The Circuit Court earlier had ordered those detainees released or transferred, but their lawyers have contended that Secretary Gates has not carried out those mandates — in one case, some 10 months after being told to do so.  Last month, they asked the Circuit Court to hold Gates in contempt, and to fine him — perhaps as much as $500,000 a day — until he complied.

In nearly identical documents, the Justice Department lawyers contended that the Circuit Court’s February ruling in Kiyemba v. Obama blocks any contempt order that would be related to the Uighurs’ plea to be released into the U.S. — the only place where they contend they could now go from Guantanamo and be safe; they have been persecuted in their homeland, China.  The Kiyemba ruling is the one that the Uighurs’ lawyers challenged early in the day in their new case in the Supreme Court.

The filings Monday afternoon marked the third situation in which the Justice Department in the new Obama Administration had relied on the Kiyemba decision in seeking to thwart the legal challenges of detainees.

The Department’s lawyers also argued in the new documents that, even without the Kiyemba decision, the Circuit Court lost its authority to issue any orders that would require the Uighurs to be released anywhere.  Orders regarding the Uighurs’ future, this document said, came under the Circuit Court’s authority under the Detainee Treatment Act of 2005, and the Circuit Court recently found that all of its DTA powers have now been extinguished (in the case of Bismullah v. Gates).

In a final argument against a contempt finding, the Justice Department attorneys argued that Gates, in fact, has not resisted acting under the Circuit Court rulings on the Uighurs’ fates.  He and others in the government, according to the filing, are working to try to find another country to which the detainees could be sent for resettlement.  And, under President Obama’s orders to make a new review of the situation with each individual detainee, the Uighurs’ cases are likely to come up early in that process, the document said.

“Given the United States’ ongoing diplomatic efforts and the Executive Branch’s active consideration of how to effect [the Uighurs’] release, it is clear that [Secretary Gates] is not ‘ignoring’ this Court’s order, as [the Uighurs] contend.”

It added: “While [they] understandably do not wish to be released to their home country, the fact that the United States has yet to identify an appropriate alternative country to taked them does not mean that the government is in violation of the Court’s order.”