Federal Judiciary

Swift ruling urged on Uighurs

By Akin Gump Supreme Court Practice Group

Lawyers for a detainee cleared for release from Guantanamo Bay but still there with no prospect of leaving have urged the Supreme Court to rule summarily — without written arguments or oral argument — that federal judges may order such detainees transferred to mainland U.S.

The amicus brief was filed April 29 by federal public defenders in Portland, Ore., supporting the pending petition in Kiyemba v. Obama (08-1234) involving 17 Chinese Muslim (Uighur) prisoners who have won a habeas challenge but have been denied actual release by the D.C. Circuit Court. The new brief can be downloaded here.

The public defenders represent two detainees not part of the Uighur group. One of them, Yasin Muhammed Basardh, a Yemni national, was granted a habeas writ but U.S. District Judge Ellen Segal Huvelle ruled that she had no power to bring about his release because of the D.C. Circuit Court ruling at issue in the Kiyemba case. The Oregon defenders have another client whose habeas case is still pending in District Court.

Arguing that the Circuit Court reached out wrongly to decide a constitutioinal issue — that the detainees have no constitutional right that would assure their release, the amicus filing said such cases can be decided by interpreting a federal law to grant the courts authority to accomplish actual release of cleared prisioners. The law mainly at issue, the brief said, is the Authorization for Use of Military Force, passed by Congress in the wake of the Sept. 11, 2001, attacks.

In a second new amicus brief, filed on Wednesday, lawyers for the American Civil Liberies Union contended that the Circuit Court in its Kiyemba decision was relying on arguments that the Supreme Court has explicitly repudiated. The Justices must step in, the ACLU contended, because the Circuit Court made “fatal analytic flaws…that will continue to permeate” how the appeals court applies the Supreme Court’s ruling last year in Boumediene v. Bush, creating a constitutional habeas right for Guantanamo prisoners. The ACLU brief can be downloaded here.

The Justices presumably will act on the petition before recessing for the summer. The Justice Department response to the case is now due on May 29. The Court is not expected to recess until late June.

Full post as published by SCOTUSBLOG on May 07, 2009 (boomark / email).