By Robert Barnes
Tuesday, March 2, 2010; A05
The Supreme Court on Monday dismissed a major separation-of-powers case involving what rights federal judges have to free Guantanamo Bay detainees who are found not to pose a threat to the United States.
The justices, without recorded dissent, agreed with the Obama administration that changed circumstances meant that the challenge, brought by a group of Chinese Muslims known as Uighurs, was not ripe for the court's consideration.
At the same time, the justices wiped out a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that had been challenged by attorneys for the detainees. The ruling said that the judicial branch had no power to release into the United States those cleared of being enemy combatants but who cannot be returned to their home countries for fear of persecution.
The Obama administration has been working to find a neutral country to accept the Uighurs and avoid another showdown at the Supreme Court on detainee rights. It persuaded Switzerland to take two of the men and said the others had been offered, but turned down, the chance to go to the island nation of Palau or a second, undisclosed country.
The court, which was scheduled to hear the case later this month, was convinced.
"Each of the detainees at issue in this case has received at least one offer of resettlement in another country," the court said in an unsigned, three-paragraph order. "Most of the detainees have accepted an offer of resettlement; five detainees, however, have rejected two such offers and are still being held at Guantanamo Bay."
That set of facts, the court said, changed the basic issue that the lower courts had considered. "No court has yet ruled in this case in light of the new facts, and we decline to be the first to do so," the order said.
The Uighurs were captured in Pakistan and Afghanistan in 2001 and have been held at the U.S. military prison at Guantanamo Bay, Cuba. But both the Bush and Obama administrations have agreed their capture was a mistake and concluded that the men pose no threat to the United States. However, the Uighurs are considered terrorists by the Chinese government and risk persecution if they return to China.
A federal judge ruled that, if there were no other place to go, the men could be released into the United States. But a three-judge panel of the D.C. Circuit overruled Judge Ricardo M. Urbina's decision, saying that only the legislative and executive branches had the power to exclude or admit foreigners to the country.
The case followed the Supreme Court's 2008 decision that Guantanamo detainees had the right to prove to a federal judge that they were being unlawfully held as enemy combatants. The Uighur case would have provided a logical next step, determining what powers a judge has to release such a person, especially when a return to the person's home country is not an option.
Attorneys for the Uighurs urged the court not to dismiss the case, saying it would only delay an inevitable decision. The 2008 decision in Bourmediene v. Bush would be meaningless if judges did not have the power to order a release when finding a detainee was being held illegally.
The lawyers said that other cases are waiting -- there are 188 detainees still at Guantanamo -- and that the court should decide the judicial power issue now. But they also argued that, if the court decided not to hear the case because of the changed circumstances, it should void the circuit court's decision so that it did not stand as precedent. The justices sent the case back to lower courts for reconsideration in light of the resettlement offers.
The case is Kiyemba v. Obama.