Posts Tagged ‘aumf’

Can the United States Detain Indefinitely? The Case of the Uighurs

February 19, 2009

On February 18, 2009, the federal Court of Appeals for the District of Columbia  reversed a decision of the district court ordering that seventeen ethnic Uighurs be released from Guantanamo into this country.  This despite the fact that the government has ceased considering them to be enemy combatants, therefore acknowledging that they cannot be held on that basis.

The problem for the Uighurs is that while the United States wants to release them to some other country, it does not want to release them into the United States. They cannot be sent back to their native China, however, because the Chinese government might conclude they are part of an insurgency against its authority, and subject them to arrest, torture or execution.  So far no third country has been willing to take them. On these facts, the district court concluded that there are constitutional limits on the ability of the executive branch indefinitely to detain the Uighurs, and so it ordered their release.

In a 2-1 decision, the court of appeals saw a critical difference between a right to be released and a right to be released into the United States.  The Supreme Court’s earlier decision in Boumediene v. Bush, which concluded that the writ of habeas corpus was available to Guantanamo detainees, did not hold that Guantanamo was part of the United States.  Therefore, the Uighurs remain aliens who have not entered the country.  Thus they seem to be covered by an unbroken string of Supreme Court decisions consistently holding that “the decision whether to allow an alien to enter the country was for the political departments, not the Judiciary.”  Accordingly, a court — and even a court sitting in habeas — lacks the authority to order their release into the United States. 

This is an exceedingly odd result.  (more…)