Court reinstates troubling prior ruling that federal courts lack the authority to order the release of non-citizens held by federal government into the U.S.
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WASHINGTON – Today, the Constitution Project expressed disappointment in the decision by the U.S. Court of Appeals for the District of Columbia Circuit not to order a new fact-finding hearing for the five Chinese Muslims, known as Uighurs, still unlawfully detained at the Guantanamo Bay detention facility. Equally troubling was the majority’s decision to reinstate the D.C. Circuit’s broad prior ruling that federal courts lack the authority to order the release of non-citizens being held by the federal government into the United States. The D.C. Circuit was acting in response to a U.S. Supreme Court order in March vacating the court’s earlier decision and ordering the D.C. Circuit to determine what further proceedings are appropriate. Although the Supreme Court had accepted the case for review in the fall of 2009, by early 2010, each of the Uighurs then remaining at Guantanamo had received offers of resettlement in other countries, and the Court directed a review of the implications of these developments.
“We are saddened to learn that the five Uighurs still remaining at Guantanamo will not have the opportunity to prove in court that they have not yet received appropriate resettlement offers and have been denied an effective remedy for their unlawful detentions,” said Sharon Bradford Franklin, Senior Counsel for the Constitution Project. “We are also disturbed by the court’s decision to reinstate its broad earlier decision. The court could have decided the case on narrower grounds based upon the recent resettlement offers, rather than unnecessarily, and in our view wrongfully, holding that courts lack the power to order release in the United States as a remedy for unlawful detention.”
Prior to the Supreme Court’s action in March, the Constitution Project, along with several other NGOs, had filed an amicus brief in the Supreme Court in support of the Uighurs, arguing that the courts do have the power to order release as a remedy in a habeas case, and that failure to grant this power would undermine the Supreme Court’s Boumediene decision, which recognized the rights of the Guantanamo detainees to challenge their detentions in federal court. This is particularly critical in the case of the Uighur detainees, who have continued to be held at Guantanamo despite longstanding recognition by the military and the courts that they are not enemy combatants.
However, all of the five Uighurs remaining at Guantanamo had received an offer of resettlement in another country. They rejected these offers of resettlement, but the terms of the rejected offers are not entirely clear from public accounts. The D.C. Circuit’s opinion rejects the Uighurs’ efforts to prove to a trial court why these rejected offers were not appropriate offers of resettlement.
Last May, the Constitution Project joined with prominent conservatives in issuing a statement calling on the federal government to release of the Uighurs from Guantanamo and recognize its responsibility in resettling those being held.
Click here to view the amicus brief filed in the U.S. Supreme Court.
Click here to see a copy of the conservative statement, signed onto by Stephen E. Abraham, Mickey Edwards, Richard A. Epstein, Thomas B. Evans, Jr., David Keene, William H. Taft, IV, Don Wallace Jr., John W. Whitehead, and Lawrence B. Wilkerson.