Federal Judiciary

En banc denied in Uighurs’ case

By Akin Gump Supreme Court Practice Group

UPDATED 4:40 p.m. with filing of new U.S. brief (see below)

Over two judges’ dissents, the en banc D.C. Circuit Court refused on Friday to review a three-judge panel’s order postponing until at least late November any transfer of 17 Guantanamo Bay detainees to the U.S.  The order denying rehearing en banc before the 10-judge Court noted only the dissents of Circuit Judges Janice Rogers Brown and Judith W. Rogers.  The majority made no comment.  The full Court acted without asking for a response from the government.

The action means that a stay remains intact on District Judge Ricardo M. Urbina’s Oct. 7 ruling that the 17 Chinese Muslim Uighurs be brought to the U.S., and released to live in the country, at least temporarily.   A three-judge panel of the Circuit Court had issued that stay last Monday.  The detainees’ lawyers then sought en banc consideration. (The lead case amog six appeals is Kiyemba v. Bush, 08-5424.)

Under the timetable set by the panel, briefs on the government’s challenge to Judge Urbina’s release order are to be completed by Nov. 7, with oral argument set for Monday, Nov. 24.

The government’s merits brief was expected to be filed later Friday. 

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UPDATE

The Justice Department on Friday afternoon filed a 52-page merits brief. arguing that its agreement not to send the 17 Uighurs back to China, where they fear torture or death, did not bar it “from exercising its sovereign power” to deny them entry into the U.S. mainland.  The detainees, it said, have no right under federal laws or under the Constitution to enter the U.S. over the objection of the Executive Branch.

The Supreme Court’s June 12 ruling in Boumediene v. Bush, allowing detainees to file constitutional habeas challenges to their captivity, “did not give aliens wholly outside the United States the same constitutional privileges granted to aliens that the political branches have chosen to admit,” it contended.

Even if Judge Urbina did have some authority to order that the Uighurs be released in the U.S., the brief argued, his order was still invalid because it denied the government “a reasonable additional period to wind up” their detention at Guantanamo, and a chance to seek coinditions on their release if brought into the country.

And, it added, if the detainees did arrive in the U.S., “they would be subject to immediate detention” until they could be deported, under the immigration laws.

As it has in earlier court filings, the government’s new brief said the Uighurs would not be eligible to enter the U.S. under immigration laws because those laws bar entry of one who has “engaged in a terrorist activity.”  That is not limited, it said, solely to those who actually fought against the U.S. or its allies “in an armed conflict.”  The 17, it contended, are linked to an organization that the State Department has labeled to be a terrorist entity, and it is beside the point that the organization is not “a threat to us” because the law excluding members of such groups does not require such proof.

Notably, however, the new brief does not repeat assertions made in prior filings in the case that the 17 Uighurs themselves are dangerous, and that they pose a distinct threat to national security because they previously had weapons training  Strong statements in prior court documents to that effect reportedly have brought protests from State Department diplomats, who contended that such claims had made it more difficult to get any country other than China to accept them as settlers.

The only allusion to the prior claims that the individuals were personally threatening to the U.S. was a rejection of Judge Urbina’s conclusion that the government by those earlier accusations had undermined diplomatic efforts to resettle the 17.

The detainees’ merits brief is due next Friday.

Full post as published by SCOTUSBLOG on October 24, 2008 (boomark / email).