The Supreme Court-mandated system for reviewing the legality of detention at Guantanamo Bay is working, and the prisoners should not be allowed to control their ultimate fate by refusing offers for resettlement to other countries, the Justice Department argued to a federal court on Monday.  The filing in D.C. Circuit Court was in response to that Court’s request for a reaction to a new challenge by five Chinese Muslim “Uighurs” still at Guantanamo even though cleared for release.

The Uighurs — whose case the Supreme Court had agreed to hear last Term but returned it to the Circuit Court without a ruling — have asked the en banc Circuit Court to reconsider the case and order a new fact-finding hearing on their current status and the scope of their habeas rights.

No further review should be granted, the Department contended, because there is no dispute on the only fact that counts — that is, the five prisoners have had offers to be resettled in other countries, and have refused to take any such offer.

The plea for a new fact-finding process in District Court, the Department said, “depends on a theory that a Guantanamo detainee who does not want to be resettled in a third country because, for example, it lacks cultural affinity or would not permit him to own real property…, can compel a court order requring the United States Government to bring him into this country for release simply by declining to accept the resettlement offer.”

The Supreme Court’s 2008 ruling in Boumediene v. Bush, declasring a constitutional right for Guatanamo detainees to test in court their confinement, has been followed by a court review system that has now cleared 41 prisoners for release, the Justice Department said.  Of 12 cases that have become final, all 12 have now left Guantanamo, it noted.

The Uighurs, it added, are “wrong to claim that meaningful habeas relief is not available absent this Court’s en banc review.  These five individuals, the Department said, “are the only Guantanamo detainees with final orders granting habeas relief who still remain in U.S. custody….The writ of habeas corpus is effective at Guantanamo, and the question posed by the petition for rehearing en banc — whether a federal court could ever order release of a detainee in the United States — simply is not presented at this stage of proceedings.”

The new filing also once again offered a defense of the constitutionality of new laws passed by Congress, barring the transfer into the U.S. of any Guantanamo prisoner who is ordered released by a federal court.

Under the Circuit Court’s rules, the Uighurs’ lawyer will not be allowed to file a reply unless the court expressly asks for one.   There is no timetable for the Court to vote on the rehearing plea.

Posted in Detainee Litigation