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Supreme Court to hear Uighurs' case
Justices to consider whether judges can release them into U.S.

By Robert Barnes
Washington Post Staff Writer
Wednesday, October 21, 2009; A01

The Supreme Court set aside the objections of the Obama administration and said Tuesday that it will consider whether judges have the power to release Guantanamo Bay detainees into the United States if they have been deemed not to be "enemy combatants."

The case, involving a group of Chinese Muslims known as Uighurs, again thrusts the court into the jangle of policy decisions and constitutional principles involving the approximately 220 men still held at the base in Cuba. And the court's decision to hear it could further complicate plans to close the military prison in January, a deadline the Obama administration recently said it might be unable to meet.

Last year, the court ruled 5 to 4 that a Guantanamo detainee had the right to prove to a federal judge that he was being unlawfully held as an enemy combatant. The current case is a logical next step, determining what powers a judge has to release such a person, especially when sending him back to his home country is not an option.

The Obama administration, like the Bush administration, says decisions about releasing detainees are reserved for the executive branch. And both the executive branch and Congress have said that decisions about whether detainees may be shipped to the United States, if there is no other place for them, are reserved for the political branches.

But lawyers for the Uighurs said restricting what judges may do to release those who have won their freedom would make the court's 2008 decision in Boumediene v. Bush meaningless.

"It would be hard to overstate the importance of the question presented in this case -- to the rule of law and to the public," the lawyers wrote in a brief to the court.

Solicitor General Elena Kagan countered in the government's petition that the Boumediene decision "did not purport to address whether detainees who demonstrate an entitlement to release from detention as enemy combatants have a further and distinct constitutional right to enter the United States."

The Justice Department said in a statement Tuesday that it intends to decide by mid-November how it will prosecute remaining Guantanamo prisoners and that the government is proceeding with plans to close the prison. The court's involvement in the Uighur case makes it clear that the administration will need to find policies that suit not only Congress but the court as well.

A case long in waiting

The court has been considering whether to take the case since this spring, and it is not clear why it decided to do so now. Kagan has sent the justices letters saying that a remedy to the situation facing the Uighurs is imminent. The men, captured in Pakistan and Afghanistan in 2001 but now thought to pose no threat to the United States, are considered terrorists by the Chinese government and risk persecution if returned to China.

A federal judge ruled that, if there were no place else to go, the 17 prisoners could be released into this country. That alarmed members of Congress who thought the men might be shipped to their districts, including in Northern Virginia. The area is home to about 300 Uighurs, the largest concentration in the nation.

"The community could help provide support," said Alim Seytoff of the Washington-based Uighur American Association, who hailed the court's decision to take the case. "Seventeen families have offered to open their homes, and just to provide one bedroom for them, so the family could help them with food and help to resettle them."

Congress has restricted the use of federal funds to move the men to the United States.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia overruled Judge Ricardo M. Urbina's decision in the case, saying only the legislative and executive branches had the power to exclude or admit foreigners to the country.

The Obama administration told the Supreme Court that the appeals court had reached the correct decision.

"There is a fundamental difference between ordering the release of a detained alien to permit him to return home or to another country and ordering that the alien be brought to and released in the United States without regard to immigration laws," Kagan wrote in the government's response.

She also sent the court a letter last month essentially asking for more time, saying the government was close to a solution.

New homes for some

Four Uighurs have been sent to Bermuda, while six have accepted an invitation to move to the Pacific island nation of Palau. The country has offered to take six of the seven other Uighurs at Guantanamo, and Kagan said some departures for Palau are imminent.

"The United States is working diligently to find an appropriate place to resettle the remaining Uighur detainees," she wrote. She said the men were being held in the least restrictive part of the facility, with special privileges.

But the last of the detainees, Arkin Mahmud, has found no country willing to take him because of his severe mental health problems, and his brother has refused to leave without him.

The court will not hear the case until next year. If the government is successful in finding a place for the men, it might make this case moot. But Susan Baker Manning, a lawyer who represents the men, said that would only defer a decision that must be made. "Standing behind the 13 Uighur petitioners are many more men with the same argument," she said.

After the Boumediene decision, judges have ordered the release of 30 detainees since late last year. Eighteen of those, including the 13 Uighurs, remain at Guantanamo Bay, according to lawyers representing detainees challenging their detentions in the District's federal court.

The case is Kiyemba v. Obama.

Staff writers Del Quentin Wilber and Tara Bahrampour contributed to this report.

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