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U.S. opposes Uighurs’ plea

UPDATE 9 p.m.

The Obama Administration urged the Supreme Court on Friday to turn away the plea by 17 Chinese Muslim Uighurs for release from Guantanamo Bay for settling temporarily inside the U.S.  The U.S. Solicitor General’s brief in opposition in Kiyemba, et al., v. Obama, et al. (08-1234) can be downloaded here.   Although no longer considered enemies, their continued confinement at Guantanamo is constitutionally valid, the brief asserted.

The Uighurs, Solicitor General Elena Kagan wrote, “have already obtained relief.  They are no longer detained as enemy combatants, they are free to leave Guantanamo Bay to any country that is willing to accept them, and in the meantime, they are housed in facilities separate from those for enemy combatants under the least restrictive conditions practicable.”

The brief holds to the position of the Bush Administration that a court’s power to issue a remedy in a habeas case — even in the wake of the Supreme Court’s mandate last year that the detainees have a constitutional right to seek their freedom — is limited to a finding of eligibility for release, without an actual release from captivity while diplomatic negotiations to resettle a prisoner continue.  The brief seeks to draw a clear distinction between “simple release” and “release into the U.S.”

The filing also clearly embraces the Bush Administration view that detainees cleared for release may be held for a “wind-up” period of indefinite duration, while resettlement efforts proceed. The brief does not specify how long such a period could last, saying only that it would be “a reasonable period of time.”  But it cites examples from past history suggesting that it could run for “several years.”

The D.C. Circuit Court ruled in February that no federal court has the authority to order release of a Guantanamo prisoner into the U.S., and the Solicitor General argued that that decision is correct.

“The court of appeals,” the brief said, “properly recognized that whether to admit an alien into the United States presents a question wholly distinct from issues concerning detention abroad — and a question that is reserved to the political Branches.”

The Supreme Court, it added, “has repeatedly stressed that whether to allow an alien into the United States is a sovereign prerogative that requires the consent of the political Branches.”

The Uighurs, the government brief said, “would like the federal courts to order that they be brought to the United States, because they are unwilling to return to their home country. But they have no entitlement to that form of relief.”

It sought to persuade the Court that the Uighurs, no longer considered “enemy combatants,” are not really being detained any longer. Their “continued presence at Guantanamo Bay is not unlawful detention, but rather the consequence of their lawful exclusion from the United States, under the constitutional exercise of authority by the political Branches, coupled with the unavailability of another country willing to accept them.”

The brief went on to say that, because their exclusion from the U.S. “is constitutionally valid, their resulting harborage at Guantanamo Bay is constitutional as well.”

The Uighurs’ lawyer will now have a chance to reply to the government’s opposition, and the Supreme Court will then decide whether to hear and decide the case.  It is possible, though not a certainty, that the Court will make up its mind for or against review before recessing for the summer late next month.

If the Court accepts the government’s view, either by denying review or by granting review and ruling against the detainees’ release, the Uighurs’ fate will depend entirely upon efforts by the State Department to find another country willing to accept them — a prospect that appears to be diminishing, especially in foreign governments’ negative reaction to heavy political resistance in Congress to resettlement of any Guantanamo prisoner inside the U.S.

There are 240 detainees remaining at Guantanamo, and the Obama Administration is reviewing their status, one at a time. It is making plans to close Guantanamo entirely by next January, but the complications in resettling at least some of those who will be found eligible for release might make that deadline difficult to meet.

Attorney General Eric Holder is now traveling in Europe, where, according to news accounts, he is being confronted by arguments of foreign leaders that, unless the U.S. is willing to have some detainees transferred to the U.S., other nations cannot be expected to accept them.

But, whatever the desires of the Obama Administration, there is a strong movement in Congress to prevent transfers of the Uighurs, or anyone else at Guantanamo, to live in the U.S. even temporarily.  Some in Congress, in fact, are questioning whether the solution to the dilemma of finding other countries for resettlement would be to keep Guantanamo open.

The Solicitor General’s brief mentions the actions in Congress, but does not express agreement or disagreement with them. It suggests, though, that such activity in the political departments is another reason the Supreme Court should refuse to get involved.