Supreme Court to rule on release of Guantanamo detainees into U.S.

McClatchy NewspapersOctober 20, 2009 

WASHINGTON — The Supreme Court's decision Tuesday to weigh whether a federal judge has the power to release Guantanamo Bay prisoners into the United States continues a legal tug of war begun when the Bush administration opened the overseas detention camp.

While President Barack Obama is trying to close Guantanamo's detention facility, he largely shares Bush's views about the deference owed a president. The latest case could further clarify this wartime balance of power.

"It's really important that the Supreme Court step in now," said Elizabeth Goitein, the director of the Brennan Center for Justice's Liberty and National Security Project. "This is an issue that's likely to keep arising."

In the closely watched case involving 17 Muslim Uighurs detained starting in 2002, the high court once more will consider how far traditional U.S. constitutional protections extend to the Guantanamo detainees.

A narrowly divided court in the 2008 Boumediene v. Bush case previously determined that detainees could file habeas corpus petitions challenging their indefinite detention. This time, the court will take the next step, considering whether a judicial remedy might include setting them free within the United States.

"Courts must have the power to compel release in order for successful challenges to unlawful detention to have any meaning," said Sharon Bradford Franklin, senior counsel for the Constitution Project, a bipartisan legal organization that filed a friend of the court brief in the case.

Uighurs are described as Turkic Muslims from an isolated region in western China. They say the Chinese government represses them, while the Chinese government says it fears an Islamic separatist movement.

In the case called Kiyemba v. United States, 17 Uighurs captured in Pakistan or Afghanistan were held at Guantanamo starting in 2002, even though American officials ultimately determined they weren't a threat to the United States. Officials also argued, however, that they could not release the Uighurs safely because they'd be at risk if returned to China.

Currently, the Uighurs remaining at Guantanamo live in what the Obama administration calls a "special communal housing" unit, which includes a stereo system, sports equipment and other amenities not available to other detainees.

A federal trial judge in Washington, nonetheless voicing dismay at the Uighurs' plight, ordered their release last year into the United States.

"The carte blanche authority the political branches purportedly wield over (the Uighurs) is not in keeping with our system of governance," U.S. District Judge Ricardo Urbina declared.

An appellate court blocked that decision, and in the meantime members of Congress have agitated against relocating foreign detainees within U.S. territory.

"There are some enormous political problems with releasing the Guantanamo detainees into the United States now," Goitein said, although in the case of the Uighurs, "it is what the law and Constitution requires."

The Obama administration wanted the Supreme Court to sidestep the issue, with Solicitor General Elena Kagan advising the court that the island nation of Palau has agreed to accept a dozen of the Uighurs. The case eventually could become moot if all the detainees find a home outside of Guantanamo, though that would still leave core questions unanswered.

In particular, the Obama administration argues that a federal judge lacks the authority to make what amounts to an immigration policy decision.

"The power to exclude aliens is 'inherent in sovereignty,' and the power to decide which aliens may enter the United States, and on what terms, rests exclusively in the political branches," Kagan argued in a legal brief.

Justice Anthony Kennedy wrote the decision in Boumediene and will likely again be a swing vote. In the year since Boumediene was decided, Justice Sonia Sotomayor has replaced Justice David Souter on the court. She has not yet had time to fully reveal her views on national security matters.

There are currently 221 detainees at Guantanamo, including 13 Uighurs. Four other Uighurs have been moved to Bermuda, where they are guest workers.

(Carol Rosenberg of The Miami Herald contributed to this report from Guantanamo.)

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