FURTHER UPDATED 1:10 a.m. Friday.  The Justice Department’s brief on the merits in this case is due to be filed later Friday, according to the Supreme Court’s electronic docket.  The blog will post a report on the brief when it is filed.  A key issue is how the government will respond to the latest development in the case — the planned re-settlement of two of the detainees to Switzerland, including whether it will now seek to have the case dismissed.

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The government of Switzerland has agreed to accept two of the seven Chinese Muslim (Uighur) detainees remaining at Guantanamo Bay, but their lawyers insisted that the case scheduled for review by the Supreme Court will go on.  In a letter sent to the Court Tuesday, the attorneys noted the agreement of Swiss authorities, in a humanitarian gesture, to accept two brothers — one of whom has been offered no resettlement opportunity by any country.  They are among the seven whose legal fate the Justices will examine in Kiyemba v. Obama (08-1234), now scheduled for oral argument on March 23.

The two now headed for Switzerland are Arkin Mahmud and Bahtiyar Mahnut.  Previously, Mahnut was among the Uighurs at Guantanamo Bay who had been offered re-settlement.  A plan to transfer Mahnut and others to the Pacific island nation of Palau existed last summer, but it did not occur, and there apparently is no present indication that the offer remains open.  No nation, including Palau, had indicated any willingness to accept his brother, Mahmud, until the arrangement with Swiss authorities was worked out.

In notifying the Court of the transfer of the two to Switzerland within perhaps 60 days, the Uighurs’ counsel argued that the pending case “will remain very much alive.”  If the Justice Department has a different view, the letter suggested, the Court should leave the issue for further examination at the oral argument, but perhaps might wish to call for new briefing.  It appears likely that the Justice Department will offer its own view on where the case now stands, before the oral argument occurs.

None of the seven is considered by the government to be dangerous and thus no longer needing to be detained, but efforts to resettle them have not yet worked out for all of them.  The U.S. government will not send any of them back to their homeland in China out of concern that they may be tortured or killed; they are part of a religious minority that has been severely repressed in western China.

Posted in Detainee Litigation, What's Happening Now