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Chinese Detainees' Lawyers Will Take Case to High Court
Ruling on Uighurs Is Called Vital
By Carol D. Leonnig
Washington Post Staff Writer
01/17/06 "Washington
Post" -- -- Lawyers for a group of Chinese
nationals held in the U.S. military prison at Guantanamo Bay,
Cuba, with no hope of release are taking the rare step of asking
the Supreme Court to intervene immediately, saying only the high
court can resolve the constitutional crisis their case presents.
Attorneys for the detained Uighurs, Muslim natives of western
China who oppose their country's Communist rule, are scheduled
to petition the court as early as today. They seek a break in
the impasse created when U.S. District Judge James Robertson
ruled last month that the Bush administration's "Kafka-esque"
detention of the Uighurs was illegal but he simultaneously
determined that the court lacked the power to overrule the
president and free them.
"That ruling doesn't simply hit innocent men now in their fifth
year of imprisonment," said Sabin Willett, one of the Uighurs'
attorneys. "It goes to whether we have a judicial branch at all.
This is that rare question so vital that the Supreme Court
should immediately intervene to answer."
Lawyers for the nine Chinese detainees plan to urge the Supreme
Court to step into the void, arguing in draft legal documents
they provided to The Washington Post that the high court and the
public have a major stake when the federal judiciary decides it
cannot stop the president from continuing to break the law.
Their case is among nearly 200 legal challenges filed since 2004
on behalf of Guantanamo Bay detainees who are contesting the
legality of their imprisonment, and it is among the first in
which a court has reached a conclusion on the central question
of whether their detention is unlawful.
The government acknowledges that the Uighurs were imprisoned by
mistake in 2002. Military officials determined in 2004 that they
were not enemy combatants and should be released.
Robertson wrote in his Dec. 22 opinion that the Uighurs would
probably be persecuted if they were returned to China. They are
seeking refuge in the United States, where other Uighurs have
been granted asylum, the judge said, but only the president has
the authority to grant that and his administration has
strenuously opposed the idea.
The State Department has tried without success to persuade other
countries to take in the Uighurs, officials have said.
It is highly unusual for parties in a case to seek a hearing
before the Supreme Court -- called a petition for certiorari
before judgment -- at this stage. The attorneys for the
detainees are asking the high court to let their clients skip
the year-long process of first appealing to the federal appeals
court for the District of Columbia and resolve the conundrum of
a ruling without relief and what they call the "absurdity" of
illegal imprisonment without end.
Lawyers working on behalf of the Uighurs argue that Robertson's
decision effectively "proclaims an Executive with unchecked
power . . . to seize and perpetually imprison persons from
around the globe."
"The prospect of innocent men detained indefinitely, and of an
Executive wielding powers beyond those granted to it by the
Constitution . . . is simply intolerable," they wrote.
A Justice Department spokesman declined to comment on legal
papers that have not been filed yet. The administration has
argued in court that the president can continue to detain the
Uighurs under the executive's "necessary power to wind up
wartime detentions in an orderly fashion."
The two men at the center of the dispute, Abu Bakker Qassim and
Adel Abdu Hakim, were seized by bounty hunters in Pakistan after
they fled U.S. bombing in Afghanistan in the fall of 2001. They
were turned over to U.S. forces and taken to Guantanamo Bay in
2002. A military tribunal formally ruled in the spring of 2004
that they were not enemy combatants and should be released.
Their case could affect as many as nine Uighurs currently held
at Guantanamo Bay.
It is rare for the high court to grant this kind of petition,
legal experts say. Those that meet the high standard typically
involve a direct conflict between two branches of government and
center on a matter of "imperative public importance."
The court agreed to take up such a request in 2002 when
presented with two related Michigan affirmative action cases
that were moving through the federal courts at different stages
and created a potential conflict. The most historic examples of
cases that went directly to the Supreme Court include U.S. v.
Nixon , in which the court determined that President Richard M.
Nixon had to turn over tapes of Oval Office conversations during
the Watergate scandal, and Youngstown v. Sawyer , in which the
court ruled that President Harry S. Truman's war powers did not
give him the authority to seize private steel mills.
© 2006 The Washington Post Company
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