In a late Friday filing, the Obama administration urged the Supreme Court (see
Kiyemba.Opp.pdf ) not to take up a case brought by 14 Chinese Uighurs who contend that the U.S. is unlawfully detaining them at Guantanamo Bay even though they're not classified as enemy combatants. The question at hand is very important: do federal courts have the authority to order the executive branch to release detainees into the United States? The Uighurs say yes -- no other country will take them, and they fear repression if they're returned to their native country. The U.S. government agrees, but it contends that "the Political branches" bear the burden of deciding whether to let them into the country because they are aliens, not citizens.

It's a dilly of a pickle in some ways: the government is forced to justify the conditions that the Uighers live in at Guantanamo -- they're in comfortable housing and can leave for any other country when they want -- but must, at the same time, acknowledge that the Guantanamo holding facility is not where the Uighers will end up after Gitmo closes next January (providing Congress appropriates the money.) That's the heart of the Uighers' case -- that if the U.S. government, which was responsible for their detention, cannot find a place for them to go, it must either hold them indefinitely -- which it cannot do -- or it must release them into the United States, where the Uighers will be protected from torture and persecution.  Keeping them at Gimto until the government figures out what to do with them is tantamount to indefinite detention.

The government's case rests on its assertion that, under U.S. and international law and through the course of history, the political branches of a nation state can determine who to let in to their country.  There is no constitutional right for non-citizens to enter the United States.  And outside the statutory framework provided by immigration laws, there is no other way for an alien to enter the U.S., unless they happen to jump over a fence. The government also cites "wind up" authority, defined here as the authority to "arrange for the orderly resettlement" of combatants after a war.  It takes time to "wind up" a conflict; so long as the government is working to resettle the prisoners, the government contends that it is acting lawfully.