New York Times Online (October 21, 2009)

Justices to Decide if Detainees Can Be Released Into U.S.

WASHINGTON — The Supreme Court on Tuesday agreed to decide whether federal courts have the power to order prisoners held at Guantánamo Bay to be released into the United States.

The case concerns 17 men from the largely Muslim Uighur region of western China who continue to be held although the government has determined that they pose no threat to the United States.

Last October, a federal judge here ordered the men released. But a federal appeals court reversed that ruling in February, saying that judges do not have the power to override immigration laws and force the executive branch to release foreigners into the United States.

An appeal from the Uighurs has been pending in the Supreme Court since April, and it is not clear why the justices acted on it now. The Obama administration has sent some of the prisoners to Bermuda, and Palau has said it will accept most of the rest. But one prisoner apparently has nowhere to go.

The prisoners have said they fear they will be tortured or executed if they are returned to China, where they are viewed as terrorists.

The case presents the next logical legal question in the series of detainee cases to reach the court. Last year, in Boumediene v. Bush, the court ruled that federal judges have jurisdiction to hear habeas corpus claims from prisoners held at Guantánamo.

Lawyers for the Uighur prisoners say the Boumediene ruling would be an empty one if it did not imply giving judges the power to order prisoners who cannot be returned to their home countries or settled elsewhere to be released into the United States.

The new case, Kiyemba v. Obama, 08-1234, is likely to be argued early next year. But if the administration is successful in settling all of the Uighur prisoners abroad, it may turn out to be moot.

The Obama administration has so far avoided confrontation with the court over its detention policies. After the court agreed last year to hear the case of Ali al-Marri, a Qatari student held as an enemy combatant, the administration transferred him to civilian court, mooting his appeal. Mr. Marri later pleaded guilty to terrorism-related charges.

In urging the court not to hear the new case, the Justice Department said that the Uighurs were “free to leave Guantánamo Bay to go to any country that is willing to accept them, and in the meantime, they are housed in facilities separate from those for enemy combatants under the least restrictive conditions practicable.”

But, the Justice Department’s brief continued, “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.”

Lawyers for the Uighurs, who were captured in Pakistan after the Sept. 11 terrorist attacks, argued that the appeals court’s ruling rendered the writ of habeas corpus an empty gesture. It made courts “powerless to relieve unlawful imprisonment, even when the executive brought the prisoners to our threshold, imprisons them there without legal justification, and — as seven years have so poignantly proved — there is nowhere else to go,” the Uighurs’ brief said.