In Re: Guantanamo Bay Detainee Litigation (D.C.Dist.Ct. 10/8/08)

URBINA

In a fairly unprecedented opinion (to a fairly unprecedented legal and factual situation), Judge Urbina, of the D.C. Dist. Ct., ordered the Government to transport 17 Uighurs from Guantanamo Bay to the continental United States - by Friday - and expressed, on the record, that he would be greatly displeased if the DHS were to detain them on arrival.  He further declined to stay his decision, setting off an immediate stay application to the D.C. Cir, and a prompt response.  The District Court's analysis was:

1.  Mezei didn't apply, because the detention here is indefinite (since no country wants to take these individuals, and they can't be returned to China, where they'd be tortured).  Mezei is superseded by Zadvydas and Clark v Martinez.

2.  Mezei also didn't apply because in this case, the DC Cir has already rejected the Govt's args that they're unlawful combatants, in Parhat. (In Mezei, the judiciary didn't actually address the security risk allegations of the Govt).

3.  The DistCt found the detention indefinite, noting that 10 were cleared by 2003, another 5 cleared in 2004 - but that negotiations couldn't place them anywhere.

4.  While AG's failure to parole these individuals would normally be the end of the matter, they've been brought to a jail and detained indefinitely - no "absolute deference" to Govt - habeas corpus and constitution require more.  No carte blanche authority to Executive.

Memorandum of decision 

The U.S. Govt sought an emergency stay from the Court of Appeals, arguing that entry into the US would irrevocably alter their legal status, and that they're dangers to the community.  That stay motion is here. 

The detainees' response in opposition is here. 

The Court of Appeals is expected to rule shortly.