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The Future of the Uighur Detainees’ Kiyemba Litigation

12:00 PM, Mar 15, 2010 • By DAVEED GARTENSTEIN-ROSS
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The Uighurs petitioned the Supreme Court to reverse the D.C. Circuit's decision, but an early strategic maneuver was their undoing. In their “Question Presented” to the Court, they doubled down on the notion that release into the U.S. was required because, in their words, “release into the United States is the only possible effective remedy.” That claim proved to be inaccurate: Shortly before the Supreme Court agreed to hear the case, six of the seven petitioners were offered release to the island of Palau—and rejected it. One rejected the offer because he wanted to stay with his brother, who had not been offered release. Then, as the parties were in the process of filing their briefs before the Court, Switzerland agreed to take the two brothers. At the DOJ’s urging, the Supreme Court dismissed the case because “each of the detainees at issue in this case has received at least one offer of resettlement in another country,” and remanded the case to the D.C. Circuit to determine what further proceedings were appropriate in light of the new facts.

Some commentators, such as Lyle Denniston, have described the Supreme Court dismissal as a “partial victory” for the Uighur detainees because the Court vacated the D.C. Circuit’s “sweeping ruling” foreclosing the possibility that the Uighurs could force the government to release them into the U.S. despite immigration laws barring such release. But such characterizations overstate a minor procedural point: By vacating the D.C. Circuit’s decision, the Supreme Court did nothing more than reopen the circuit court’s proceedings in order to allow it to determine whether to reinstate its previous decision, to engage in further factual development, or to send the case back to the original district court.

In a pleading filed on March 4, the Uighurs’ lawyers urged the latter course of action. The government’s filing before the D.C. Circuit is due on March 22; it is likely to argue that factual developments in the case are immaterial to what the D.C. Circuit said in its previous decision, and to urge the circuit court to reaffirm that opinion. Overall, there is no reason to believe that the D.C. Circuit won’t issue another decision rejecting the Uighurs’ demand to be released into the United States. Further, if the circuit court does issue another such decision, review in the Supreme Court is not at all assured, since other countries are now stepping forward to grant admission to the detainees.

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