Several days ago, counsel for five Uighur detainees filed a motion to stay a recent Circuit Court decision which upheld broad governmental powers in transferring detainees without third party review by the courts.

The stay is requested pending their appeal of that order to the SCOTUS. SCOTUSblog has helpfully posted the full brief in PDF form.

A response brief from DOJ is due today, and I’m hoping for something better than "the courts can’t compel us to release anyone, thank you very much." But I am, sadly, not holding my breath on that one.

Why?  Because of what the US government may or may not continue to do:

At issue in the case are several orders issued by District Court judges, temporarily limiting the government’s power to transfer individuals out of Guantanamo. The detainees’ lawyers sought those limits to give them a chance to challenge any possible transfer to another country where the prisoners were likely to be tortured, or detained further. Some of the orders require a 30-day notice before a detainee could be sent elsewhere.

The issue gains in importance as the Obama Administration moves toward some final policy decisions on what to do with Guantanamo detainees, in preparation for President Obama’s planned closing of the detention facility next January.

The Circuit Court refused in July to rehear en banc its April ruling. The vote was 6-3. If the Circuit Court now puts the decision into effect without delay, the government would then be free to shift individuals out of Guantanamo with federal judges having no power to intervene.

We have seen maneuvers previously to thwart third party oversight by the Courts on matters ranging from FISA to the gutting of habeas corpus by the MCA and elsewhere. In all cases, the issue comes down to an uplifting of executive power under a unilateral executive theory of supremacy — one which has not, thus far anyway, faired well at SCOTUS.

The Uighurs have provided a stark window into the injustices and excesses of the lengthy detention of innocents at Gitmo.

It has taken years of detention, interrogation by the Chinese under our auspices, exposure of lack of counsel, multiple hearings, adjudication of innocence and then a lengthy attempt at negotiating resettlements for these detainees after we refused to allow them resettlement.

And yet? Still we hold several Uighurs in our custody who have been found "no longer enemy combatants," in official parlance, and China is demanding them back.

I’ll be keeping an eye out for the government’s response brief.

In the meantime?  We still have Uighurs sitting in a prison run by our government after that same government has declared them innocent of the charges for which they were initially detained.  It’s the end of innocence through the looking glass.

Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com

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