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Constitution Project Dismayed by D.C. Circuit's Refusal to Further Examine Uighurs' Cases

Court reinstates troubling prior ruling that federal courts lack the authority to order the release of non-citizens held by federal government into the U.S.


Today, the Constitution Project expressed
disappointment in the decision by the U.S. Court of Appeals for the
District of Columbia Circuit not to order a new fact-finding hearing for
the five Chinese Muslims, known as Uighurs, still unlawfully detained
at the Guantanamo Bay detention facility. Equally troubling was the
majority's decision to reinstate the D.C. Circuit's broad prior ruling
that federal courts lack the authority to order the release of
non-citizens being held by the federal government into the United
States. The D.C. Circuit was acting in response to a U.S. Supreme Court
order in March vacating the court's earlier decision and ordering the
D.C. Circuit to determine what further proceedings are appropriate.
Although the Supreme Court had accepted the case for review in the fall
of 2009, by early 2010, each of the Uighurs then remaining at Guantanamo
had received offers of resettlement in other countries, and the Court
directed a review of the implications of these developments.

are saddened to learn that the five Uighurs still remaining at
Guantanamo will not have the opportunity to prove in court that they
have not yet received appropriate resettlement offers and have been
denied an effective remedy for their unlawful detentions," said Sharon
Bradford Franklin, Senior Counsel for the Constitution Project. "We are
also disturbed by the court's decision to reinstate its broad earlier
decision. The court could have decided the case on narrower grounds
based upon the recent resettlement offers, rather than unnecessarily,
and in our view wrongfully, holding that courts lack the power to order
release in the United States as a remedy for unlawful detention."

to the Supreme Court's action in March, the Constitution Project, along
with several other NGOs, had filed an amicus brief in the
Supreme Court in support of the Uighurs, arguing that the courts do have
the power to order release as a remedy in a habeas case, and
that failure to grant this power would undermine the Supreme Court's Boumediene decision,
which recognized the rights of the Guantanamo detainees to challenge
their detentions in federal court. This is particularly critical in the
case of the Uighur detainees, who have continued to be held at
Guantanamo despite longstanding recognition by the military and the
courts that they are not enemy combatants.

However, all of the
five Uighurs remaining at Guantanamo had received an offer of
resettlement in another country. They rejected these offers of
resettlement, but the terms of the rejected offers are not entirely
clear from public accounts. The D.C. Circuit's opinion rejects the
Uighurs' efforts to prove to a trial court why these rejected offers
were not appropriate offers of resettlement.

Last May, the
Constitution Project joined with prominent conservatives in issuing a
statement calling on the federal government to release of the Uighurs
from Guantanamo and recognize its responsibility in resettling those
being held.

To view the amicus brief filed in the U.S.
Supreme Court, go to:

To see a copy of the conservative statement, signed onto by
Stephen E. Abraham, Mickey Edwards, Richard A. Epstein, Thomas B. Evans,
Jr., David Keene, William H. Taft, IV, Don Wallace Jr., John W.
Whitehead, and Lawrence B. Wilkerson, go to:

The Constitution Project is a politically independent think tank established in 1997 to promote and defend constitutional safeguards. More information about the Constitution Project is available at