Going Back to Basics: Why the Uighurs Case is Testing the Structure of the Constitution

This week saw the case of the 17 Chinese Muslims (“Uighurs”) unlawfully detained at Guantanamo Bay remain in limbo as the Bush administration continued to delay their release.

To sum up, On Oct. 7th Judge Ricardo Urbina of the DC District ordered the Uighurs released into Washington, DC, however the following day a three-judge panel in the DC Circuit temporarily blocked their release so it could consider ordering a longer stay. The issue in contention is whether the detainees are dangerous, which to date the government has been unable to prove. This Tuesday lawyers for the 17 detainees responded to the stay with their own filing, arguing that the government has, after nearly seven years, given up its chance to demonstrate that the Uighurs are in any way dangerous. Moreover, the detainees’ lawyers added that by continuing to claim in court that the 17 men are dangerous, the Justice Department has undermined diplomatic efforts to convince another country to accept them — a sentiment with which the State Department reportedly concurs. Yesterday, the DOJ filed a reply brief clarifying (amazingly) that the Uighurs are in fact only dangerous to Americans because the US has illegally detained them for six years and (you guessed it) they may now be a little angry with us.

There has been excellent commentary on the Uighurs case this week on ScotusBlog, Balkinization, and Blog of Rights, largely focused on the legality of the Uighurs’ detention and the debate over whether they should be released into the US.

But beyond both those issues, the case of the 17 Uighurs is also an exceptional illustration of the checks and balances built into the Constitution to protect against abuses of government power.

The Uighurs case deals with two separate but extremely important contexts – foreign affairs and immigration – in which the powers of the political branches of government are at their utmost. The Framers established the powers of Congress and the President to conduct foreign affairs and exercise war powers, and gave the legislature plenary power to oversee immigration and establish naturalization laws. However, these powers were to be exercised in accordance with the fundamental mandates of the Constitution (most specifically, due process). To ensure that the political branches respected the limitations the Constitution placed on their authority, the Framers gave the judiciary the power to review the constitutionality of the other branches’ actions.

In this capacity, the Supreme Court has repeatedly told the Bush administration that the “war on terror” does not justify abandoning the Constitution, and that the protections of habeas corpus and due process apply to detainees. Most recently, in Boumediene v. Bush (2008) the Court confirmed that the writ of habeas corpus was available to those detained in Guantanamo to protect against transgression of these constitutional limits.

So too, has the Court maintained the constitutional line in the immigration context. In Clark v. Martinez (2005), the Supreme Court held that the executive could not indefinitely detain Cuban nationals who had arrived in the United States as part of the Mariel boatlift and could not be re-settled in another country, even though they were legally inadmissible and committed crimes within the United States. Clark and its predecessor case, Zadvydas v. Davis (2001), establish that aliens who are legally inadmissible to the United States under the immigration laws—as the government claims is true of the Uighurs—must be released into the United States after a reasonable period (6 months in Zadvydas and Clark) if the government cannot find another country to accept the aliens. While the Clark decision ultimately rested on statutory interpretation, the Court noted that to allow indefinite detention—regardless of the plenary power of the political branches in the immigration context— would press upon “constitutional limits.” These constitutional limits apply perhaps even more strongly to the Uighurs’ case than they did in Clark, where the petitioners had actually been convicted of crimes on U.S. soil, unlike the 17 Uighurs.

In other words, the Constitution and Supreme Court precedent make clear that nothing about the Uighurs’ status – neither the fact that they are detainees in Guantanamo nor the fact they are inadmissible aliens – allows the political branches of government to deny them their constitutional rights to habeas or due process while being detained by the United States. Acting according to these principles, it is inevitable that the courts would provide the remedy called for in this instance: release from executive detention under a grant of the writ of habeas corpus.

While the Bush Administration complains in its recent filing that the courts are improperly interfering with executive detention authority, this judicial check on the President and Congress is precisely what the Framers envisioned. The Framers sought to protect individuals against unlawful detention and enshrined the writ of habeas corpus—a long-established tool to protect against executive encroachment—in the original Constitution. The Framers also established three separate branches of government to act as a structural check and balance, ensuring that each branch acted properly within its constitutional authority.

Judge Urbina made this precise observation in his order that the Uighurs be released:

The [Uighurs] request that the court order their release into the United States is not a simple one. It strikes at the heart of our constitutional structure, raising serious separation-of-power concerns…

Liberty finds its liberator in the great writ [of habeas corpus], and the great writ, in turn, finds protection under the Constitution…The political branches many not simply dispense with these protections, thereby limiting the scope of habeas review by asserting that they are using their “best efforts” to resettle the petitioners in another country…These efforts have failed for the last 4 years and have no foreseeable date by which the may success. To accede to such manipulation would grant the political branches “the power to switch the Constitution on or off at will…” This would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say ‘what the law is.’ Thus, the carte blanche authority the political branches purportedly wield over the Uighurs is not in keeping with our system of governance.

In this light, the administration’s ongoing refusal to release the Uighurs can be viewed as a challenge to the very structure of the Constitution. Judge Urbina’s order granting the Uighurs habeas petitions stands for the principle, central to the Constitution, that even where the executive and legislative branches’ power is at its strongest, the judiciary must be vigilant to fulfill its role as a check and balance to that power.