WASHINGTON – The Supreme Court agreed Tuesday to decide whether Guantanamo detainees who are considered no threat can be ordered released in the United States – over the objections of the Obama administration and Congress – if the prisoners have nowhere else to go.
The case could further complicate the administration’s plans to close the Guantanamo prison where 220 or so men are still held.
The court’s fourth look at the terror-suspects detention system, created by the Bush administration following the Sept. 11, 2001, attacks, will focus on 13 Chinese Muslims, most of whom were cleared by the Pentagon for release in 2003. Six years later – and eight years after their capture in Pakistan and Afghanistan in 2001 – they remain in custody at the U.S. naval base in Cuba. The first three high court decisions were rebukes to the government for denying detainees their day in court.
The justices said they will hear a challenge from the Chinese Muslims, or Uighurs (WEE’-gurs), who are asking the court to put some teeth into its June 2008 ruling that said federal judges could ultimately order some detainees to be released, depending on security concerns and other circumstances.
Acting after the Supreme Court ruling, a federal judge in Washington said the Uighurs must be released immediately into the United States because their continued confinement was unjustified and the U.S. government could find no country willing to take them.
A federal appeals court, however, said the judge lacked the authority to order detainees released into the United States, setting up the new high court challenge.
The Uighurs say the ability to go before a federal judge is worthless if the judge ultimately has no power to free people who are being wrongly held. The administration is defending the appeals court ruling, but also noting ongoing diplomatic efforts to find the Uighurs a home.
The Uighurs have no right to enter the United States, Solicitor General Elena Kagan told the court. In fact, Kagan said, ‘they are free to leave Guantanamo Bay to go to any country that is willing to accept them.’
In the meantime, she said, they are no longer being detained as enemy combatants, but ‘are being housed under relatively unrestrictive conditions,’ given Guantanamo’s status as a military base.
The justices will hear the argument early in 2010, although it is possible that if the administration succeeds in relocating the Uighurs by then, the case could be dismissed.
President Barack Obama has promised to close the detention facility by next Jan. 22, although senior administration officials have since said that deadline might not be met. The administration, like its predecessor, has been trying to find somewhere to resettle the Uighurs, with limited success.
Congress has since entered the picture, forbidding the administration to spend any money to send detainees to the United States, other than for prosecution, and requiring a detailed plan in advance of sending them anywhere in the world. The Senate gave final congressional approval Thursday to a measure extending those restrictions.
The court might have to decide the constitutionality of that spending restriction in the Uighurs’ appeal.
Uighurs are from Xinjiang, an isolated region that borders Afghanistan, Pakistan and six Central Asian nations. They are Turkic-speaking Muslims who say they have long been repressed by the Chinese government. They fear they would be arrested, tortured or executed if sent back to China.
China has said that insurgents are leading an Islamic separatist movement in Xinjiang. Many of the Uighurs at Guantanamo have acknowledged they had gone to Afghanistan for weapons training to fight the Chinese government, Kagan said.
Earlier this year, four Uighurs were sent to Bermuda. Six more have accepted an invitation to move to Palau, and the Pacific nation has offered to take six of the seven other Uighurs at Guantanamo.
The administration indicated in September that some departures for Palau were imminent, but no one has headed there yet.
One of the 13, Arkin Mahmud, has not been offered a home, his lawyer, Sabin Willett, has told the court.
In 2006, Albania accepted five Uighur detainees, but declined to take any more, partly for fear of diplomatic repercussions from China.
A little more than three months after the high court ruled last year that the detainees could challenge their confinement in federal court, U.S. District Judge Ricardo Urbina ordered the Uighurs’ immediate release.
‘Because the Constitution prohibits indefinite detentions without cause, the continued detention is unlawful,’ Urbina said in October 2008.
Without another country willing to take the Uighurs, Urbina said they should be released in the United States.
But the U.S. Court of Appeals for the D.C. Circuit said Urbina went too far and sought to override powers that belong to the executive branch.
The three-judge appellate panel suggested the detainees might be able to seek entry by applying to the Homeland Security Department, which administers U.S. immigration laws. But the court said the detainees otherwise were out of luck.
The case is Kiyemba v. Obama, 08-1234.
