U.S. sees danger if detainees come
on Oct 10, 2008 at 5:02 pm
The Justice Department moved on Friday to get a longer postponement of any move of Guantanamo Bay detainees to the U.S. mainland, saying that “could pose a danger to the public at large.” It asked the D.C. Circuit Court to allow no such transfer until the Supreme Court has considered the delay issue. The motion for a stay, and for an expedited appeals court review of the issue, can be found here.
U.S. District Judge Ricardo M. Urbina on Tuesday ordered the government to bring 17 Chinese Muslim Uighur detainees from Guantanamo to Washington, D.C., where they would be released, since the Pentagon no longer classifies them as “enemy combatants.” The D.C. Circuit on Wednesday issued a temporary stay of the Urbina order, to give it time to consider a formal stay motion. The government motion was filed Friday afternoon; the detainees are to respond by 4 p.m. Tuesday.
The transfer should be put off while the validity of the release order is tested, the Justice Department argued, because of the “extraordinary importance of the issue,” and since the government has at least a “substantial case” on the merits if not the better of the argument over Judge Urbina’s power to take such action.
Specifically, this is what the motion proposed: a stay of the Urbina order pending appeal, an expedited appeal on the merits of the order, a continuation of the temporary stay if a longer postponement is denied by the Circuit Court, and an extension of any temporary stay to allow the government, if it chooses, to go on to the Supreme Court so that there could be no transfer of detainees until after the Justices have ruled on any stay request.
It urged the Circuit Court to start a briefing schedule on the merits 14 days after it acts on the postponement question, with all briefing completed 21 days later, and with oral argument scheduled as soon as possible after that.
In arguing that there would be danger if the 17 detainees were to be released into the U.S., the Department said “virtually all” 17 had testified at Pentagon hearings or told government interviewers that they had gone to Afghanistan “to seek weapons training to fight the Chinese Government.” Their training included the use of assault weapons, it added.
The motion contended that Judge Urbina’s finding that it is illegal to keep the 17 prisoners at Guantanamo flatly contradicts a 1953 Supreme Court ruling, Shaughnessy v. U.,S. ex rel. Mezei, and a 2005 decision by another District judge in Washington that the courts lacked authority to order release of Guantanamo detainees in the U.S.
The release order, it went on, “contravenes the basic principle that the decision whether to allow an alien into the United States rests exclusively with the political branches. Here the political branches are in agreement: the Executive has determined that [the 17 prisoners] should not be allowed into the United States, and Congress itself, in the immigration statutes, has made a considered judgment that aliens who seek to engage in terrorist activities — broadly defined to include conduct admitted to by these [individuals] — are ineligible for admission. The district court offered no sound basis for holding that statutory provision effectively unconstitutional as applied here.”
The Chinese Muslims will suffer only “modest harms” by the delay of an expedied appeal, the motion argued, because they are now being held “in largely unrestricted conditions” at Guantanamo.
