Uighurs barred from U.S.
on Feb 18, 2009 at 11:20 am
Setting up a new detention policy challenge for the Obama Administration, the D.C. Circuit Court ruled on Wednesday that a federal judge had no authority to order the release into the U.S. of 17 Chinese Muslim Uighurs being held at Guantanamo Bay, Cuba. The ruling overturned a decision last October by a federal judge, who ruled that release into this country was the only option since the government no longer considered them to be “enemy combatants” and they could not safely be returned to their homeland in China.
Only the political branches — the President and Congress — have the authority to decide when aliens may enter the U.S., the Circuit Court concluded by a 2-1 vote. A third judge on the panel found that the judge’s release order was premature, but did not join in the ruling against release at this time.
The majority concluded that “it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the government to exclude a given alien. With respect to these seventeen petitioners, the Executive Branch has determined not to allow them to enter the United States.”
The ruling was a major victory for the legal position of the Bush Administration, but might not survive as a practical matter with a new Administration now in power.
President Obama on Jan. 21 ordered a review of the status of every detainee still at Guantanamo Bay, and told officials to “identify and consider legal, logistical, and security issues relating to the potential transfer of individuals…to facilities within the United States.” The President indicated that new legislation might be needed.
The Circuit Court said it was not deciding at this point whether the President “may ignore the immigration laws and release [the Uighurs] into the United States without the consent of Congress.”
The Circuit Court opinions against judicially-ordered release are here, and the judgment is here. Senior Circuit Judge A. Raymond Randolph wrote for the majority, joined by Circuit Judge Karen LeCraft Henderson.
Circuit Judge Judith W. Rogers, while voting to overturn the judge’s release order, denounced the majority’s reasoning. She said the majority’s analysis “is not faithful” to the Supreme Court’s ruling last June in Boumediene v. Bush on detainees’ rights, and “would compromise both the Great Writ as a check on arbitrary detention and the balance of powers over exclusion and admission and release of aliens into the United States recognized by the Supreme Court to reside in the Congress, the Executive and the habeas court.” She also said the ruling’s analysis was unnecessary because the court could not yet know whether detention was justified under immigration law.
The Circuit Court decision appeared to be confined closely to the single issue of whether a federal judge may order release into the U.S. of non-citizens being held outside U.S. territory. The majority noted that the only claim by detainees that was before it was not “simple release” from Guantanamo, but whether a court could order the Executive Branch “to release them into the United States outside the framework of the immigration laws….The question here is not whether petitioners should be released, but where.”
Thus, it did not resolve legal issues — pending in other cases — over federal judges’ power to order the transfer of detainees out of Guantanamo to other countries, or to require the government to give detainees’ lawyers notice of any plan to transfer a detainee from Guantanamo to some other country.
The ruling overturned the release order issued Oct. 8 by District Judge Ricardo M. Urbina. He had ruled that the 17 Uighurs had to be brought promptly to the U.S. from Guantanamo, and allowed to live here while the government decided on their future, including possible transfer to other countries. At the Bush Administration’s request, the Circuit Court temporarily blocked that order, and proceeded to review its legality.
In overturning Judge Urbina’s decision, the majority said it found no authority for it under any federal law, the Constitution, any treaty, or the legal notion that for every right there must be a remedy.  The majority also said that the Supreme Court’s Boumediene decision did not justify the release order. Judge Randolph wrote: “Whatever may be the content of common law habeas corpus, we are certain that no habeas court since the time of Edward I ever ordered such an extraordinary remedy.”
The majority said it was not deciding whether the 17 Uighurs could qualify for admission into the U.S. under immigration law. While the Bush Administration argued that they could not, the Circuit Court said it could not resolve that question “at this stage” since the Uighurs had not applied for admission as immigrants.
The ruling sets aside Judge Urbina’s release order, and requires him to conduct unspecified “further proceedings.” It is unclear what steps the judge might take next, since he has already concluded that the 17 prisoners no longer may be held legally by the Executive Branch under constitutional habeas principles.
The Bush Administration had argued that, even though the Uighurs were no longer considered “enemies,” it still could hold them under the theory that it had the power to “wind up” its detention operations at Guantanamo, holding prisoners while trying to make arrangements for their transfer to their homeland or to other countries. Judge Urbina expressly rejected that argument. (The Circuit Court majority did not discuss the “wind up” authority question.)
Judge Rogers’ separate opinion joining only in Wednesday’s result discussed a possible alternative basis for holding the Uighurs further — under immigration laws. But, in doing so, she expressly rejected a Bush Administration argument that the Executive Branch had power — beyond any statute — to continue the detention in order to keep an alien out of the U.S.  The Circuit Court did not discuss that argument, but Judge Rogers argued that the majority’s reasoning amounted to “much the same.”
