Federal Judiciary

U.S.: Long detention makes prisoner more dangerous

By Akin Gump Supreme Court Practice Group

The Justice Department, in a new plea Thursday for the courts to keep 17 Guantanamo Bay prisoners out of the country, said that those detainees pose a risk “distinct to this Nation” — the fact that the U.S. is the country that has been holding them captive for six years.  The assertion came in a reply brief in D.C. Circuit Court on the question of transferring the group of Chinese Muslim Uighurs to the U.S. during the time the government pursues an appeal to bar them permanently.  The lead appeal among seven pending cases is Kiyemba v. Bush (08-5424).

Amid indications in a press account that there is a behind-the-scenes controversy within the Bush Administration over the validity of the Justice Department claim that the 17 individuals pose a danger if brought to the U.S., the Department’s new filing continued to insist that there is a significant risk and argued that it has not forfeited its opportunity to claim such a risk and its right, if necessary, to produce new facts to support the claim.

The claim of danger in bringing individuals into the U.S. after their prolonged captivity by the U.S. was one of four arguments that the Department stressed for barring their transfer out of Guantanamo to mainland U.S.  The document also renewed arguments that the transfer order intrudes on the power of Congress and the White House to determine which foreign aliens are allowed into the U.S., clouds the legal status of the detainees as aliens not entitled by law to enter the U.S., and threatens to complicate U.S. diplomatic efforts to resettle these detainees and others in other countries.  If detainees have a chance to come to the U.S., the brief contended, U.S. allies will be less willing to consider accepting them.

The detainees’ lawyers have contended that the Justice Department and Pentagon — with their claims of danger and risk from the Uighur detainees, claims unsupported by any evidence, the detainees claim — have themselves made it less likely that other countries will agree to have such individuals settled among their own populations.

The New York Times, in a story that detainees’ lawyers sent to the Circuit Court on Thursday afternoon, said that a U.S. diplomatic official had cancelled a trip to work on resettling the 17 detainees because of the negative effect of the Justice Department legal documents focusing on claims of danger and risk of having the Uighurs in the U.S.  The lawyers’ letter, with The Times story attached, can be found here.  The story also said that diplomatic officials do not agree with the claim that the Chinese Muslims are dangerous.  The Pentagon has decided that they are no longer “enemy combatants,” but that department and the Justice Department over the past ten days have worked diligently in statements and filings in court to portray them as a continuing threat.

Meanwhile, lawyers for one of the 17 detainees, Huzaifa Parhat, asked the Circuit Court to hold Defense Secretary Robert M. Gates in “conditional contempt” because the Pentagon has not carried out a June 20 Circuit Court ruling that Parhat is not an “enemy combatant” and is entitled to be released or transferred out of Guantanamo.  A notice of the filing of the contempt motion is here; the motion itself has not yet been cleared by the official who examines detainee case filings to see if any secret information needs to be delted.

Full post as published by SCOTUSBLOG on October 16, 2008 (boomark / email).