Gnawing on an old bone that they refuse to give up, the DC Circuit Court has again ruled in conflict with decided law to rule that the Uighurs being held in Guantanamo must not be released.
In the ruling, all three judges of the Court of Appeals for the District of Columbia Circuit agreed to reverse Judge Urbina’s decision. But the judges split 2-to-1 in a bitter disagreement about the meaning of the Supreme Court’s landmark ruling in June that gave detainees a right to challenge their detention using the centuries-old legal proceeding known as habeas corpus.
The majority said the Supreme Court decision, Boumediene v. Bush, did not give judges the power to release detainees in this country. "Never in the history of habeas corpus," the majority wrote, "has any court thought it had the power to order an alien held overseas brought into the sovereign territory of a nation and released into the general population."
But Judge Judith W. Rogers disagreed, writing that Wednesday’s ruling "ignores the very purpose" of the writ of habeas corpus, to serve as "a check on arbitrary executive power."
The Constititution Project reacts:
"We are disappointed by today’s D.C. Circuit ruling that denies freedom to the 17 men whom the government admits are not ‘enemy combatants’ and yet continues to hold at Guantanamo for a seventh year.
President Obama should exercise his power to release the Uighurs into the U.S. The appellate court’s ruling that the trial court lacked the power to compel the Executive branch to release the Uighurs into the United States in no way limits the ability of the Executive branch to release the Uighurs on its own. We therefore call on President Obama to choose the right course and evaluate the terms under which the Uighurs may be released into the United States.
The writ of habeas corpus is a fundamental constitutional right. For habeas corpus to have meaning, it must permit a court to end wrongful detentions. We regret that today’s decision failed to recognize the court’s ability to check arbitrary detention, such as that suffered by the Uighurs."
Senior Circuit Judge Raymond Randolph and Circuit Judge Karen Henderson found that a habeas court cannot order an alien held by the U.S. government at Guantanamo Bay be released into the U.S. without specific authorizing legislation. Circuit Judge Judith Rogers disagreed, arguing that majority’s opinion would compromise the writ of habeas corpus’ role as a check on arbitrary detention, but concurred that the case should be remanded for argument over whether the Executive branch has a valid alternative basis for detention.
The DC Circuit has been overuled already on Hamdan and Boumedienne, and remains obstinately opposed to the decision set out by the SCOTUS in Rasul in 2004 and reinforced by the aforementioned cases, that habeas, as a Constitutional and not just statuatory right, applies to the Guantanamo detainees. Five long years, and two additional cases later, the argument continues.
That passage of time is important to note. In a concurring opinion in Boumediene, Justice Souter wrote:
It is in fact the very lapse of four years from the time Rasul put everyone on notice that habeas process was available to Guantanamo prisoners, and the lapse of six years since some of these prisoners were captured and incarcerated, that stand at odds with the repeated suggestions of the dissenters that these cases should be seen as a judicial victory in a contest for power between the Court and the political branches. See post, at 2, 3, 28 (ROBERTS, C. J., dissenting); post, at 5, 6, 17, 18, 25 (SCALIA, J., dissenting). The several answers to the charge of triumphalism might start with a basic fact of Anglo-American constitutional history: that the power, first of the Crown and now of the Executive Branch of the United States, is necessarily limited by habeas corpus jurisdiction to enquire into the legality of executive detention. And one could explain that in this Court’s exercise of responsibility to preserve habeas corpus something much more significant is involved than pulling and hauling between the judicial and political branches. Instead, though, it is enough to repeat that some of these petitioners have spent six years behind bars. After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation.
Seven years for the Uighurs, who were determined years ago to not have been enemy combatants and who have continued to be held largely because they, like too many Guanatanamo detainees, are an inconvenience. In the case of these 17 men, the government has argued against releasing them into the U.S., and acknowledges if that they are returned to China, they'll face death. But inconvenience in trying to figure out how to resolve the cases is no excuse for the continued detention of detainees we know are innocent. The Obama administration has to bring an end to this, and to do it with all speed. This has gone on long enough.