Uighur Guantanamo detainees seek Supreme Court review of detention

[JURIST] A group of 17 Chinese Uighur [JURIST news archive] Muslims held at the Guantanamo Bay [JURIST news archive] detention center filed a petition for certiorari [text, PDF] with the US Supreme Court [official website; JURIST news archive] Monday, asking the Court to order their release. The petition seeks the Court's review of a February decision by the US Court of Appeals for the DC Circuit in Kiyemba v. Obama [opinion, PDF; JURIST report], which reversed a district court ruling [opinion and order, PDF; JURIST report] that would have freed 17 Uighurs who have been held by the US since their detention following the September 11 attacks. The certiorari petition asks the Court to overturn the DC Circuit Court's decision because it is in conflict with the Court's decision in Boumediene v. Bush [opinion, PDF; JURIST news report], which allowed Guantanamo detainees to challenge their detention by writ of habeas corpus. In the petition, lawyers for the Uighurs ask the Court to grant certiorari, saying:

In the decision below (“Kiyemba”), a panel majority of the court of appeals held that Article III courts are powerless to remedy indefinite and illegal Executive detention of prisoners within their habeas jurisdiction. If allowed to stand, the decision would eviscerate this Court’s landmark decision in Boumediene v. Bush ...

In this case, the Executive presented for payment, and the Kiyemba majority honored, the “blank check” the Court forbade five years ago. ... Notwithstanding Hamdi, Rasul v. Bush, 542 U.S. 466 (2004), and Boumediene, the panel majority inverted the Court’s decree that the Executive cannot “switch the Constitution on or off at will.” Boumediene 128 S. Ct. at 2259. Indeed, the Executive has construed Kiyemba in precisely this way, contending in recent filings that habeas proceedings brought by prisoners approved for transfer should be stayed because, after Kiyemba, no court can relieve a Guantánamo detainee’s imprisonment.

The Great Writ requires the jailer to identify in a return to the petition the law that justifies imprisonment. Kiyemba reverses this burden. Under Kiyemba, the jailer needs no legal authorization to deny freedom, and the prisoner needs the express authorization of Congress to claim it. And while these Petitioners are aliens, the question whether it is for the prisoner to justify release or the jailer to justify imprisonment arises from every detention. 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 question is fundamental, and there is every need for this Court’s immediate intervention.
The US government has determined that the Uighurs are not unlawful enemy combatants [10 USC § 948a text; JURIST news archive], but it has linked them with the East Turkestan Islamic Movement (ETIM) [CFR backgrounder], a militant group that calls for separation from China and has been a US-designated terrorist group since 2002. China has renewed its demand [JURIST report] for the Uighurs to be repatriated, and in October, Chinese authorities called on other nations [Guardian report] to arrest and extradite eight alleged ETIM members whom they suspected of plotting to attack the Olympic Games this past summer in Beijing.

 

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