The Supreme Court said Tuesday it will hear a new case about the rights of Guantanamo detainees, this time involving prisoners who remain in custody even after the Pentagon determines they're not a threat to the United States.
The high court said it will take a challenge from Chinese Muslims at the U.S. naval base in Cuba who are asking the court to put some teeth into a June 2008 ruling that said federal judges could ultimately order some detainees to be released, depending on security concerns and other circumstances.
The 13 Chinese Muslims, or Uighurs, who remain at Guantanamo have been cleared by the Pentagon for release since 2004, yet have been held roughly eight years.
A federal appeals court overturned a judge's order to give the Uighurs their freedom, saying judges lacked authority to order detainees released into the United States.
The Obama administration urged the justices to stay out of the case, saying that the appeals court was right and noting that diplomatic efforts to find a place for the Uighurs are ongoing.
Even since the administration's court filing, four Uighurs have been sent to Bermuda, while six have accepted an invitation to move to Palau. The Pacific nation has offered to take six of the seven other Uighurs at Guantanamo.
Palau could take more soon
The administration has indicated that some departures for Palau are imminent.
One Uighur, Arkin Mahmud, has nowhere to go, his lawyer told the court.
"No nation has offered him refuge," the lawyer, Sabin Willett, wrote the court.
The justices will hear the argument early in 2010, although it is possible that if the administration succeeds in relocating the Uighurs by then, the case could be dismissed.
Uighurs are from Xinjiang, an isolated region that borders Afghanistan, Pakistan and six Central Asian nations. They are Turkic-speaking Muslims who say they have long been repressed by the Chinese government. China has said that insurgents are leading an Islamic separatist movement in Xinjiang. The Uighur detainees were captured in Pakistan and Afghanistan in 2001.
The Pentagon determined in 2004 that the Uighurs were not "enemy combatants" who posed a threat to the United States. But the Bush administration had trouble finding a country that would accept them. Albania accepted just five Uighur detainees in 2006, partly for fear of diplomatic repercussions from China if it took any others.
Lower courts split
A little more than three months after the high court ruled last year that the detainees could challenge their confinement in federal court, U.S. District Judge Ricardo Urbina ordered the Uighurs' immediate release.
"Because the Constitution prohibits indefinite detentions without cause, the continued detention is unlawful," Urbina said in October 2008.
Without another country willing to take the Uighurs, Urbina said they should be released in the United States.
But the U.S. Court of Appeals for the D.C. Circuit said Urbina went too far and sought to override powers that belong to the executive branch.
The three-judge appellate panel suggested the detainees might be able to seek entry by applying to the Homeland Security Department, which administers U.S. immigration laws. But the court said the detainees otherwise were out of luck.
Congress also has weighed in to try to prevent the Guantanamo detainees from coming to the United States.
President Barack Obama has ordered the Guantanamo facility closed by January, but has yet to offer a plan for doing so. Administration officials have complained that Congress has made that job more difficult by imposing strict conditions on the movement of detainees.
The case is Kiyemba v. Obama, 08-1234.