....only the president has the authority to grant that and his administration has strenuously opposed the idea.....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."
Their lawyers will be filing suit this week in the Supreme Court demanding that the men be freed.
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.
It's a longshot that the Supreme Court will take the case.
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 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.
Detaining the innocent isn't a matter of "imperative public importance?" I think the Court should take the case. In 2001, the Supreme Court ruled in Zadvydas v. INS :
A statute permitting indefinite detention of an alien raises a serious constitutional problem. The Fifth Amendment's Due Process Clause forbids the government to deprive any person of liberty without due process of law. Freedom from imprisonment -- from government custody, detention, or other forms of physical restraint -- lies at the heart of the liberty that Clause protects. Government detention violates that Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow non-punitive circumstances, where a special justification, such as harm-threatening mental illness, outweighs the individual's constitutionally protected interest in avoiding physical restraint.
I love the Zayadas case because it holds:
But once an alien enters the country, the legal circumstance changes, for the Fifth Amendment's Due Process Clause applies to all "persons" within the United States, including aliens, whether their presence in the United States is lawful, unlawful, temporary, or permanent.
In other words, the Due Process clause applies to citizens, aliens and undocumented residents , whether here lawfully or unlawfully- so long as they are physically present within the country.
The Chinese are at Guantanamo. They have been determined not to be enemy combatants and to be innocent of wrongdoing. They had been sold by bounty hunters to the U.S. They want to stay in the United States. No other country will take them.
The Court continues: "Once removal of a deportable alien is no longer reasonably foreseeable, continued detention is no longer authorized."
In other words, they should be granted asylum.
It's bad enough that we detain those suspected of terrorism for four years without charges or lawyers. But to detain the innocent? Bush has stooped to a new low with this case.
[graphic created exclusively for TalkLeft by CL.)
