Swiss taking 2 Uighurs from Gitmo, could render moot Supreme Court case about release into US

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Swiss taking Uighur brothers held by US since 2002

WASHINGTON — A decision by Switzerland to give a home to two Chinese Muslim brothers detained at Guantanamo Bay for nearly eight years could allow the Obama administration to avoid a difficult Supreme Court argument over whether a judge can order detainees released into the United States.

The Swiss said Wednesday that they will resettle the brothers, Arkin Mahmud and Bahtiyar Mahnut, probably within a month. They are among seven Chinese Muslims, or Uighurs (pronounced WEE’-gurs), who remain at Guantanamo and have been regarded as symbols of the unfairness of the U.S. detention policy following the Sept. 11, 2001, attacks.

The high court has scheduled argument for March 23 to consider whether a federal judge can order their release into the United States over the objection of Congress and the administration when no other nation will take them. The government acknowledges they pose no terror threat, and they can’t return to China for fear of persecution or worse.

The Supreme Court case has drawn considerable attention because it also could affect the broader and hotly debated issue of whether any Guantanamo detainees — including those who can’t be brought to trial for various reasons but are considered too dangerous to release — should be brought to the U.S. as President Barack Obama fulfills his promise to close the prison at the U.S. naval base in Cuba.

The case grew out of the high court ruling in 2008 that Guantanamo detainees could challenge their confinement in federal court. That decision is worthless, the Uighurs argue, if a judge cannot ultimately order some detainees to be released.

Until Wednesday, Mahmud had no offer of a new home. The tiny Pacific island nation of Palau has offered to take the others, but had concerns about Mahmud’s mental health.

Mahnut refused to leave his brother at Guantanamo. It is unclear why the others remain there.

U.S. diplomats have tried for a long time to find the Uighurs a home, and China has tried equally hard to dissuade other countries from accepting them. Beijing regards them as suspected terrorists who should face justice in China.

The Swiss intervention seems likely to help the administration’s position.

At least, the administration will be able to say every Uighur still at Guantanamo has been offered a place to go. There were 17 Uighurs in U.S. custody in Cuba when a federal judge ruled in 2008 — a decision reversed by a federal appeals court — that they should be set free in this country.

Six other Uighurs went to Palau last year. Another four were resettled in Bermuda.

The administration could use the changed circumstances to argue that the court should drop the case even before it is argued. When someone who sues gets what he wants — in this case, freedom — a court typically ends the case because there is nothing left to decide.

The administration successfully made this argument in the case of suspected al-Qaida sleeper agent Ali al-Marri, who was detained by the military for 5 1/2 years without charges. The justices dismissed the case after the administration moved al-Marri into the civilian justice system, rather than risk a showdown over whether the president has the power to imprison people in this country indefinitely without a trial.

Although the Uighurs’ circumstances are different, the administration could say there is nothing keeping them at Guantanamo.

“I would not be surprised if the administration says that the Uighurs themselves are at fault that they have not been resettled to Palau,” said Sharon Bradford Franklin, senior counsel at The Constitution Project, a bipartisan legal think tank that wants the court to hear the case and rule for the Uighurs.

The Justice Department expressed gratitude to Switzerland for accepting the Uighurs but would not comment Wednesday on their court case. The government has until Friday to file its legal brief at the court.

Sabin Willett, lead attorney for the Uighurs, said by e-mail that he expects the case to go forward.

Elizabeth Gilson, a lawyer in New Haven, Conn., who represents the brothers, said she spent a week in Switzerland recently lobbying for their transfer. Their surnames are spelled differently in court and military documents.

Gilson said Mahmud was more affected than the others by their 18 months in solitary confinement. But since being moved to a less restrictive environment, Guantanamo’s Camp Iguana, Mahmud is “much improved,” Gilson said.

The Swiss flew a team of doctors, lawyers and a translator to Guantanamo in August to examine the brothers and two other detainees, Gilson said. An Uzbek who has been resettled in Switzerland was one of those examined, she said.

Gilson said the Swiss team decided the brothers were good candidates for relocation.