First sequel to Boumediene filed

By Lyle Denniston
on Apr 6, 2009 at 9:29 am

UPDATE:  The case has now been docketed as 08-1234.  The government’s response is currently due on May 7, although it is free to ask for more time to file.

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The first test of the Obama Administration’s detention policy to reach the Supreme Court was filed Monday, symbolically bearing the title Kiyemba v. Obama.  It is a case that, at a minimum, could shape the future of 17 Chinese Muslim prisoners still at Guantanamo Bay although cleared for release, but its impact could reach far wider.

More broadly, however, what is at stake ultimately could be the fate of many if not most of the more than 240 prisoners still at Guantanamo, who might have to remain confined there or somewhere else even if the government decides that they are not dangerous enemies.

And, in that broad sense, the new case tests just what the Supreme Court meant last June, in Boumediene v. Bush, when it recognized a constitutional right for Guantanamo detainees to challenge their confinement, and decreed that release from that imprisonment is one remedy that was to remain available.

The new petition is available here; a docket number has not yet been assigned. The D.C. Circuit Court ruling being challenged can be found here.  The question at issue is: “Whether a federal court exercising its habeas jurisdiction, as confirmed by Boumediene v. Bush,…has no power to order the release of prisoners held by the Executive for seven years, where the Executive detention is indefinite and without authorization in law, and release into the continental United States is the only possible effective remedy.”

While the target of the petition is the Circuit Court’s Feb. 18 decision, its challenge also aims at the Obama Administration’s early action on detention.  The Administration is already using the Circuit Court ruling as a basis for a claim that federal judges may lose their power to ensure actual release, once the government decides a specific detainee is not a terrorist suspect.

And, further relying on that ruling, the Administration also has urged the Circuit Court to impose a broad ban on lawsuits in U.S. courts against miliary officials, by former detainees claiming their righs were violated during captivity.

The timing of the Kiyemba case’s arrival at the Court could affect how soon the case is decided, if the Justices grant review.  Because there is almost no chance it would be heard this Term, it could well be decided after the Obama Administration has put in place all of the details of its detention policy, following a six-month review that began in late January.  But, if the 17 Chinese Muslims (members of the persecuted Uighur religious sect) have not won their actual release in the meantime, their case could still have a major effect on President Obama’s longer range detention policy

Among other reasons for that is that the Uighurs are asking the Court to recognize an additional constitutional right for them — a right based on the Due Process Clause, making it unconstitutional to continue to hold in some form of custody an individual who has been found not to be dangerous and who has not been charged with any crime.

The Circuit Court ruled that Guantanamo detainees have no constitutional rights, other than the habeas right the Supreme Court established in Boumediene.  (Probably because the en banc Circuit Court is now deeply divided on detainee issues, the Uighurs did not seek review by the full bench there, instead going directly to the Supreme Court.) 

The Uighurs’ petition (speaking for 14 of the 17 covered by the Circuit Corut decision) interpreted that ruling as sweeping in its scope.  The “panel majority…held that Article III courts are powerless to remedy indefinite and illegal Executive detention of prisoners within their habeas jurisdiction.”

“It allowed to stand,” it added, “the decision would eviscerate this Court’s landmark decision in Boumediene v. Bush…The Kiyemba majority’s taxidermy would hang Boumediene as a trophy in the law library, impressive but lifeless.  For Kiyemba‘s practical result is that while every Guatanamo prisoner enjoys the privilege of habeas corpus, none can obtain a judicial remedy…In this case, the Execuive presented for payment, and the Kiyemba majority honored, the ‘blank check’ the [Supreme] Courr forbade five years ago.”

At its core, the Uighurs’ case is about release of detainees to live at least temporarily in the U.S., because they cannot be returned safely to their homeland in Chinca and because, after years of diplomatic efforts, the U.S. government has not been able to persuade any other country to accept them.

But the petition argued that the Circuit Court, in ruling that no detainee has a right to enter the U.S., adopted a rationale that could doom the chances of anyone held in U.S. detention from gaining release through a habeas challenge.

Under that rationale, according to the petition, a habeas court does not have the power to require the government to actually release a detainee once the government has come forward with a declaration that it is making an effort, however unsuccessful, to find a place where that prisoner can be freed.

The Circuit Court got to that point, the petition contended, by “inverting” the usual approach in a habeas case.  As long understood, the petition said, habeas puts the burden on the government when it detains someone to justify that captivity and, if it cannot do so, release is the remedy.  The Circuit Court, however, “held that a habeas court has no power to order release unless the prisoner demonstrates an affirmative personal right to that remedy,” the Uighurs’ asserted.

“This Court,” the petition added, “has already held that imprisonment the Executive cannot show to be authorized by law is a particular wrong that does have a remedy, and that remedy is release.”

In wiping out a District judge’s order last October that the Uighurs be released into the U.S. mainland, the Circuit Court turned the case into a test of a test of the immigration laws, the petition asserted.  The Uighurs never sought any immigration status, they noted, yet the Circuit Court interpreted their habeas plea as one not for release, but for entry into the U.S. without any legal right to do so.

“This recharacterization,” the petition went on, “permitted the majority to invoke the principle that the political branches have discretion over immigration matters…Interpreting the immigration laws or the immigration powers of the political branches to bar a remedy in habeas where no law authorizes executive detention would effect the same suspension of the [habeas] writ that this Court found unconstitutional in Boumediene.”

“The immigration laws have not been triggered in this case,” the petition said, adding that the detainees’ aim is to enter the U.S. only because that is the only remaining place in which they can be resettled after release from military custody.   Once they are in the U.S., the government may then apply immigration laws to determine their longer-term future, it said.