UPDATE: Bingham McCutchen lawyers today filed a petition seeking a rehearing en banc of a D.C. Circuit three-judge panel order that blocked the release of 17 Uighur detainees. The order "concerns an issue of exceptional importance" and conflicts with Supreme Court precedent in habeas cases, Bingham partner Susan Baker Manning says in a brief. The panel's order, Manning says, is "erroneous and departs radically" from rules regarding release pending appeal in habeas cases. "The grant of a stay here has rewarded the government for its utter failure to litigate the facts before the district court," Manning writes.
Judge Judith Rogers argued against the continued detention of 17 Uighurs at the Guantanamo Bay military prison, but two colleagues on the U.S. Court of Appeals for the D.C. Circuit disagreed and ordered a stay this week to block the release of the men.
Earlier this month U.S. District Judge Ricardo Urbina ordered the government to release the men into the United States. Government officials do not consider the men—Chinese Muslims who were turned over to the United States in Pakistan in 2001—to be enemy combatants. Urbina called their continued detention unlawful.
Government lawyers moved for a stay, and the D.C. Circuit yesterday issued an order blocking the Uighurs’ release. Judges Karen LeCraft Henderson and A. Raymond Randolph granted the government’s motion to stay the release pending appeal and set oral argument for November 24. The judges ruled without opinion that the government “satisfied the stringent standards required for a stay pending appeal.”
The government argued the executive branch has sole authority to determine whether to admit a Guantanamo detainee into the United States. Immigration law, Justice Department lawyers said, forbids district courts from ordering the release of an alien into the United States. A team from Bingham McCutchen represented the Uighurs.
Judge Rogers issued a four-page dissent. “The [lower] court’s release order was based on findings that are either uncontested by the government or clearly supported by the record,” Rogers wrote. “Although expressly offered the opportunity by the district court, the government presented no evidence that the petitioners pose a threat to the national security of the United States or the safety of the community or any person.”
The fact the Uighur detainees have received firearms training “cannot alone show they are dangerous, unless millions of United States resident citizens who have received firearms training are to be deemed dangerous as well,” Rogers wrote.
A Justice Department spokesman, Brian Roehrkasse, said the government was pleased with the D.C. Circuit’s decision. There was no immediate word whether Bingham lawyers planned to challenge the appellate court’s order.