Federal Judiciary

Government resists detainees in U.S.

By Akin Gump Supreme Court Practice Group

In a new plea in D.C. Circuit Court, the Justice Department on Monday asked a three-judge panel to make clear that it has not authorized the move to the U.S. mainland of any detainee now held at Guantanamo Bay, Cuba.   In doing so, the Department said it would no longer attempt to hold a Chinese Muslim prisoner as if he were an “enemy combatant,” but will try instead to get some other country to accept him.

The detainee, Huzaifa Parhat, was the first Guantanamo captive to have his detention challenge decided by the Circuit Court.  The three-judge panel ruled on June 20 that the Pentagon cannot hold an individual as a designated enemy on the basis of “mere assertions” of terrorist links. For Parhat, the panel said, one remedy now available was his release from detention.

Following up on that ruling, Parhat’s lawyers on July 23 became the first Guantanamo prisoner to ask a U.S. court to order his release into the U.S., to live at least temporarily with a community of other members of a Chinese Muslim minority that had been persecuted in their home country.  The lawyers contended that the Circuit Court was well aware that release of Parhat could only mean a return to China — which would be ruled out because of the threat he faced if sent there — or a move to the U.S. mainland.

The Justice Department is determined to resist the move to the U.S. of any individual now at Guantanamo, and so it asked the Circuit Court to clarify its ruling of June 20 so that it does not resolve judges’ authority to compel such a transfer. That issue should be decided initially in District Court, it said.  The new plea took the form of a petition for rehearing; it can be found here.

On the question of Parhat’s status as a detainee, the petition said “the government has determined that it would serve no useful purpose to engage in further litigation” over that.  The government had already been decided that he should be cleared for release, it said, adding that “it has determined that it will treat Parhat as if he were no longer an enemy combatant and house him according while it uses its best efforts to place him in a foreign country.”

This switch, the Department said, should put an end to Parhat’s habeas challenge to his status.  But, it went on, this does not resolve the issue of whether federal judges have anyh authority “to order release into the United States.”

Directly contesting the claim by Parhat’s lawyers, in their move to have him released into this country, the Department contended that the Circuit Court did not find that such a release was now authorized.  The Court, it said, should “clarify that it did not already resolve that question in its opinion.”

The new filing made clear that, on the merits of whether judges have any such authority, the Department will resist.  Any order requiring “the Government to bring a non-resident alien” to the U.S. would conflict not only with federal immigration law, “but also would be contrary to over a century of Supreme Court jurisprudence recognizing that the admission of aliens is a quintessential sovereign function reserved exclusively to the political branches of government.”

The petition recalled that one federal judge had ruled three years ago that release of a Guantanamo detainee into the U.S. was not an authorized remedy in a habeas case. That ruling came in the case of another Chinese Muslim, Abu Bakker Qassim, who since has been transferred out of Guantanamo but to Albania.  U.S. District Judge James Robertson, in a decision in that case (docket 05-497) on Dec. 22, 2005, ruled that he could not provide a remedy — such as release into the U.S. — even after Qassim was ruled not to be an enemy combatant.  Qassim appealed, but the Circuit Court dismissed the appeal as moot after his transfer to Albania.

Full post as published by SCOTUSBLOG on August 04, 2008 (boomark / email).