Judge orders Uighurs to U.S.; government appeals

FURTHER UPDATE 10:40

The transcript of Tuesday’s hearing, including Judge Urbina’s oral ruling, can be found here.  The government’s appeal focuses on the oral decision and on the minute entry summarizing that order. Judge Urbina, however, promised that “a formal opinion” would follow.

UPDATE 5:50 p.m.

The White House filed a swift appeal of the judge’s release order, and said it would seek “emergency relief” from the D.C. Circuit Court tonight. White House Press Secretary Dana Perino said the order, “if allowed to stand, could be used as precedent for other detainees held at Guantanamo Bay, including sworn enemies of the United States suspected of planning the attacks of 9/11, who may also seek release into our country.” Perino’s statement is here. A Justice Department statement is here. The notice of appeal is here.  Lawyers for the detainees filed papers to spell out the services that would be provided to detainees once they were in the U.S., treating them as refugees.  Those papers can be found by those with PACER accounts on the District Court’s website, under docket 05-1509, entry 178. The detainees’ lawyers also filed a proposed order, available here.

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A federal judge on Tuesday ordered the government to release a group of 17 Chinese Muslims held at Guantanamo Bay into the United States, and to present them in his courtroom at 10 a.m. this Friday for a handover to local caretakers.

At a hearing this morning in U.S. District Court in Washington, Judge Ricardo M. Urbina said whatever authority the government possessed to detain the Uighurs – whom the government has conceded are not enemy combatants but cannot be returned to China for fear of potential persecution – had “ceased.”

Urbina also ordered a subsequent hearing for October 16, at which members of the Department of Homeland Security could speak to the conditions they wish to apply to the Uighurs’ presence in the country.

With regard to Friday’s hearing, Urbina said he wanted to question the Uighurs himself, and asked lawyers for the detainees to bring the individuals expected to provide temporary shelter to the exchange.

In advance of the October 16 hearing, Urbina said immigration officials are to neither question nor detain any members of the group. “That is not how the three branches of government work together,” Urbina said. “Nothing will happen to these people.”

The ruling came in the case of Kiyemba, et al. v. Bush (05-1509). A copy of the minute order is available here.

Lawyers for the Uighurs had originally asked that Urbina “parole” them into the country, a temporary — and revocable — form of immigration relief frequently extended in humanitarian situations. Having instead granted the Uighurs outright release into the United States, Urbina said the request for parole was “moot.” It was not clear from Tuesday’s developments, however, what immigration status the Uighurs would possess upon their arrival in the country.

Delivering a summary of his ruling from the bench, Urbina said his order was based on the fact that the Uighurs’ detention had become effectively indefinite, that the government conceded they would not return to the battlefield, and that the government had provided no alternative grounds for detention. He noted the government’s “extensive diplomatic efforts” had yet to find a country willing to accept the Uighurs, and rejected the government’s argument that the Executive branched possessed authority to “wind-up” their detention.

Urbina denied a Justice Department lawyer’s request to stay the order for a week so that the government could review its options. In advance of Friday’s deadline, the government is expected to seek a stay of the order from the U.S. Court of Appeals for the D.C. Circuit. The case may ultimately end up before the Supreme Court, presenting a clash between the judiciary’s power to end unlawful government detention, and the power of the political branches to set admissions standards for aliens entering the country.

During a spirited hearing in advance of the ruling, Justice Department lawyer John O’Quinn repeatedly contended that Urbina could not order the Uighurs, held at Guantanamo for some seven years, to be released into the country. But Urbina said the principal case on which the government relied, Shaughnessy v. Mezei (1953), had been “undermined” by the Supreme Court’s more recent decisions in Zadvydas v. Davis (2001) and Clark v. Martinez (2005).

The Court’s decision in Mezei permitted the government to indefinitely detain at Ellis Island a green-card holder whom immigration officials deemed a security risk following an extended visit to then-Communist Eastern Europe, but which no country was willing to take back. Nearly fifty years later, the ruling Zadvydas said that the prospect of indefinitely detaining previously admitted aliens that were subject to deportation, but that no country would accept, would pose grave constitutional concerns.

O’Quinn also contended during the hearing that while the government had removed the Uighurs’ label as “enemy combatants,” officials had not deemed them non-dangerous. He said the group had been captured in 2001 in Tora Bora in Afghanistan, near to where Osama bin Laden was believed to be hiding at the time, and had been trained to automatic assault rifles.

But Urbina was unpersuaded. “What is the security risk to the United States should these people be admitted to live here?” he asked. O’Quinn said Congress, through a provision in the Immigration and Nationality Act, has barred the admission of individuals who had engaged in terrorist activities, and that the Uighurs were believed to be affiliated with the East Turkestan Islamic Movement, which the United States lists as a terrorist organization.

After the ruling, Sabin Willett, a Boston lawyer representing the Uighurs, noted the presence of numerous individuals in the courtroom that could ease the group’s transition in the country, including Rebiya Kadeer, the president of the World Uighur Congress and former political prisoner in China, and a representative of Lutheran Immigration & Refugee Service in Baltimore. Willett also said a former software executive, whom he declined to publicly name, had made a “substantial” financial commitment to any resettlement effort.