Lawyers for a Yemeni national held at Guantanamo Bay, who won a court order for his release more than seven months ago but remains detained, have urged the Supreme Court to take up his case promptly now that a lower appeals court has put it on hold. A letter said that review of his case by the Justices, without waiting for lower courts, is “the appropriate recourse.” The case is Basardh v. Gates et al. (08-10982), now scheduled for Friday’s private Conference of the Justices. Attorneys for Yasin Muhammed Basardh filed the letter Tuesday; it was received and released by the Court Thursday.
U.S. District Judge Ellen Segal Huvelle in March found that Basardh’s detention was no longer justified, after more than seven years, because the government had not shown that he would return to military action with a terrorist network; he had served earlier with terrorist forces. A prospect of return to an active military role is the only basis for detention under current federal law, Huvelle ruled. The government has challenged that ruling in the D.C. Circuit Court, and Basardh has filed his own appeal there, arguing that he was entitled to immediate release. Earlier this month, at the government’s request, the Circuit Court put the cases (now consolidated) on hold, pending a Supreme Court ruling in Kiyemba et al. v. Obama et al. (08-1234). The Justices have since granted review of Kiyemba.
Basardh’s counsel contended that he is in the same situation as the detainees involved in the Kiyemba case — he cannot return safely to his home country, so release into the U.S. is the only available option. While at Guantanamo, Basardh has actively cooperated with military authorities, providing information about other detainees; as a result, he and his family have received death threats. And, if he were sent back to Yemen, he and his counsel argue, he would be at risk of death. In the Kiyemba case, the 13 Chinese Muslim (Uighur) detainees contend that, if returned to China, they would suffer persecution and torture as a religious minority. They, too, are seeking release into the U.S.
Earlier, Basardh’s attorneys had urged the Court to grant review of his case if the Kiyemba case were to wash out because the Uighurs had been re-settled to another country. That resettlement has not yet occurred.  In the new Basardh letter to the Court, his counsel cited the delay that has now occurred in his case at the Circuit Court, and used that as a new argument for the Justices to hear his plea for release. The Circuit Court’s ruling that is at issue in Kiyemba prevents the release of any detainee into the U.S. by court order.  That, the letter contended, means “immediate harm” to Basardh because he is unable to obtain prompt release.
The Court has the option of agreeing to hear his case, or denying review (the option the Justice Department has suggested), or simply holding it until it rules in the Kiyemba case. If it were to grant review now, presumably the case could be heard along with Kiyemba, oral argument in which is not expected until February or March.
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