Detention of Uighurs is Unconstitutional

The Constitution Project Files Amicus Brief Asserting Courts Have Power to Order Uighur Guantanamo Detainees Freed

For Immediate Release: October 31, 2008
Contact: Daniel Schuman, 202-580-6922,

In a friend of the court brief being filed today, the Constitution Project, the Brennan Center for Justice, the Rutherford Institute, and the National Association of Criminal Defense Lawyers urge the U.S. Court of Appeals for the District of Columbia to uphold District Court Judge Ricardo M. Urbina’s recent order to release 17 Chinese Muslims, known as Uighurs, who are currently being detained at Guantanamo Bay. These four nonprofit public policy organizations addressed the separation of powers issues raised in Kiyemba v. Bush.

Sharon Bradford Franklin, Senior Counsel with the Constitution Project, said, “The Administration’s position would unconstitutionally deprive the courts of their authority under our system of separation of powers and its tactics have undermined any hope for a political resolution. The Administration’s unfounded claim that the Uighurs constitute a danger to a public, made for the first time in its appeal here and unsupported by the record, has destroyed any chance of persuading another country to resettle the Uighurs.”

Although the Administration admits that the Uighur detainees are not enemy combatants, it cannot repatriate them to China because of state sponsored persecution and it has not found another country willing to accept them. The amicus brief argues that overruling the District Court’s order to release the Uighurs in favor of the Executive would violate the Suspension Clause and Article III of the Constitution, and would intrude upon the power of the judiciary to decide cases. Last June, the U.S. Supreme Court in Boumediene concluded that courts have the ability to hear Guantanamo detainee habeas cases, and the Supreme Court noted that release is a “constitutionally required remedy” in habeas cases.

On October 8, 2008, Judge Urbina ruled that the Uighurs’ detention was unlawful because “the Constitution prohibits indefinite detention without cause.” Even so, the Administration continues to argue that only the political branches have the authority to decide to release detainees. The amicus brief also counters the Executive’s assertion that it possesses “wind up” authority that would allow it to decide whether and when to comply with a habeas court’s release order.

The U.S. Court of Appeals has scheduled oral arguments for November 24, six weeks after the Uighurs were set to be released under Judge Urbina’s order and six years after they were first detained. The amicus brief will be made available at

To speak with an expert, please contact Daniel Schuman at 202-580-6922 or

The Constitution Project is an independent bipartisan think tank. The Brennan Center for Justice is a non-partisan public policy and law institute affiliated with the New York University School of Law. The Rutherford Institution is an international civil liberties organization. The National Association of Criminal Defense Lawyers is a professional bar association that works to advance the mission of the nation’s criminal defense lawyers to ensure justice and due process for persons accused of crime or other misconduct.

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