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New plea for Uighurs

Reacting promptly to the Supreme Court’s return of a major detainee case to lower courts for a new look, lawyers for seven Guantanamo Bay detainees on Thursday urged the D.C. Circuit Court to pass the case back to a federal District judge to develop the facts on the prisoners’ chances for resettlement abroad.   In a motion to remand, attorneys for the Chinese Muslim Uighurs said the case should not be finally resolved until all of the facts are in.  (The case in the Circuit Court is Kiyemba, et al., v. Obama, et al., lead docket number 08-5424.)

On Monday, the Supreme Court ordered the Circuit Cout to decide what lower courts should do next about the seven Uighurs who have had offers to be transferred out of Guantanamo, but still remain there sixteen months after a federal judge found them eligible for release.  (The Justices had agreed to rule on the case this Term, but opted to return the case to lower courts after the facts had changed.)

The prisoners’ counsel, arguing that the Circuit Court “is not institutionally suited or equipped” to engage itself in fact-finding, asked for a prompt return of the case to U.S. District Judge Ricardo M. Urbina to “determine the facts surrounding purported offers of resettlement abroad.”  If there is an “appropriate, real, and immediate” chance of resettlement, the motion said, Judge Urbina may not need to order that the individuals be sent to the U.S., as he had done earlier.

The motion noted that the Justice Department had suggested that several of the detainees had turned down offers to go to the Pacific island nation of Palau or one other country — since identified as the Indian Ocean nation of the Maldives.  The Department thus suggested that the Uighurs were still at Guantanamo out of personal choice.  Reacting to that, their lawyers wrote: “If the Executive’s position is that they have consigned themselves to life imprisonment, such a dramatic position ought at least to have the benefit of a fully developed record, and briefing addressing those specific facts.”  Two of the seven have offers to go to Switzerland, and have accepted, yet remain at Guantanamo.

In no event, the lawyers contended, should the Circuit Court now simply reinstate its ruling in February of last year that Judge Urbina had no authority to order the release of the Uighurs into the U.S.  The Supreme Court vacated that ruling in its Monday order, so the Uighurs’ counsel argued that “it would be a mistake to reinstate” that decision “without appropriate factual inquiry, on the theory that factual developments concerning the development of alternatives, or of potential alternatives, are immaterial.”

In discussing the need for a new factual inquiry, the motion said “there is no information in the record that would allow this or any other court to discern the conditions placed upon the purported offers of resettlement, when and why they were later withdrawn, or why they did not lead to release.”

While the motion suggested that Judge Urbina, after further review, may not need to order the transfer of the Uighurs to the U.S., he must have the authority to provide legal relief for them in order to comply with the Supreme Court’s June 2008 decision in Boumediene v. Bush, establishing a constitutional right for Guantanamo Bay detainees to challenge their continued imprisonment.

The Justice Department presumably will soon offer its own views to the Circuit Court on how to proceed next.   The Circuit Court itself has not yet taken any action on the Supreme Court’s order returning the case, according to the Circuit Court docket.