Federal Judiciary

U.S. asks Circuit Court for speed on Uighurs

By Akin Gump Supreme Court Practice Group

NOTE: The following is an update of the post below describing the actions of Judge Ricardo M. Urbina earlier Tuesday in the case of 17 detainees at Guantanamo Bay.  The post below includes a link to Judge Urbina’s hearing transcript, including his oral ruling.

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The Justice Department, in an emergency filing Tuesday night, asked the D.C. Circuit Court to act by no later than tomorrow on its request for a temporary order blocking a judge’s order that 17 Chinese Muslim detainees at Guantanamo Bay be transported to Washington, D.C., this week.  The Department said action within the next day was necessary “in order for the government to seek an emergency stay from the Supreme Court, if necessary.”

The emergency motion for a stay can be found here.  The Department said that Judge Urbina’s order “raises legal questions of the highest magnitude,” in addition to being a “short-circuit” of a diplomatic process that has been seeking to place the Uighurs in another country.

“The order directly conflicts with the basic principle that the decision whether to admit an alien into the United States rests exclusively with the Executive,” the motion said.  “Furthermore, the district court’s order of release into the United States contravenes the considered judgment of Congress that aliens who, like the detainees, have sought to wage terror on a sovereign government — even one other than the United States — are ineligible for admission into this country.”

While asserting that these detainees have “sought to wage terror,” and repeating the contention that they were, when captured, ”fleeing a military training camp in Afghanistan” where they had received weapons training, the government has concluded and told U.S. courts that it no longer considers them to be “enemy combatants.” That last fact was a key to Judge Urbina’s release order.

The Department told the Circuit Court that, if it gets an emergency stay, it plans to file “a full motion for a stay” pending appeal by Friday of this week, seeking a response from detainees’ lawyers by Tuesday and a government reply by next Thursday, Oct. 16.

“If a stay is granted,” the motion said, “the appeal could proceed on a highly expedited schedule.  The Government proposes that the opening merits brief on appeal be due fourteen days from the date of the Court’s ruling on the Government’s motion for a stay pending appeal; that the response brief be due fourteen days later, and that the reply brief be due seven days after that date.”

The government, it said, “should not be forced to take the extraordinary step of bringing 17 aliens trained for armed insurrection against their home country to be released in Washington, D.C., without the opportunity for this Court’s full appellate review of the crucial and novel legal questions presented.  Furthermore, and crucially for purposes of this [emergency] motion, the Government should be given a meaningful opportunity to present its case for a stay pending appeal — and the petitioners’ counsel be given a meaningful opportunity to respond — under a time frame less compressed than the one-day period that currently exists before steps must be taken to transport the detainees from Guantanamo to the United States.”

Judge Urbina has refused to stay his order, and has refused to issue a short administrative stay to allow the Justice Department to pursue its appeal.

Full post as published by SCOTUSBLOG on October 07, 2008 (boomark / email).