UPDATE: The Kiyemba case discussed below had been scheduled for oral argument on March 23. The Court has now released a revised March oral argument calendar omitting that case.
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The Supreme Court on Monday ordered the D.C. Circuit Court to take a new look at the case testing federal judges’ powers to order Guantanamo Bay detainees released from custody — a case the Justices had granted and were to hear later this month. In a brief order, without noted dissent, the Court said the Circuit Court was to decide “what further proceedings in that court or in the District Court are necessary and appropriate for the full and final disposition of the case in light of…new developments.” The case is Kiyemba, et al., v. Obama, et al. (08-1234). The “new developments” are offers to resettle the seven Chinese Muslim Uighurs remaining at Guantanamo.
The Justices’ action has two immediate effects: first, it wipes out the Circuit Court’s earlier ruling that federal judges have no power to order release into the U.S., even temporarily, because that is an immigration matter exclusively for the President and Congress, and, second, it means that the Justices will not have any final ruling this Term on detainee matters, putting the Court on the sidelines while the two other branches of government work out where to go next on policy involving capture and detention of individuals during the government’s “war on terror.” President Obama wants to close Guantanamo, but there are efforts in Congress to keep it open in order to assure that no detainee reaches the U.S. shores, even for further detention. There are also efforts on Capitol Hill to block any criminal trial in the U.S. of a Guantanamo prisoner, including those who have been charged with the 9/11 terrorist attacks. A third effect of Monday’s order very likely will be that the Court may not act this Term on a second Kiyemba case (same title, docket 09-581) that offered another opportunity to explore the courts’ authority to deal with Guantanamo captives’ fate. That case involves some of the same individuals who appealed in the case the Court agreed to hear in October. (The granted case is now informally known as “Kiyemba I.” The case in 09-581 is thus known as “Kiyemba II.”)
Both cases were sequels to the Supreme Court’s ruling in Boumediene v. Bush in June 2008, establishing a constitutional right for Guantanamo prisoners to challenge their continued detention. The new appeals thus were attempts to test whether, in implementing Boumediene, federal judges had any authority to require the actual release of a detainee even in situations where the government no longer had any basis for confining them. The government no longer considers any of the Uighurs to be enemies of the U.S., but takes the position that their movement out of Guantanamo is solely within the diplomatic power of the U.S. government to arrange for their resettlement elsewhere.
Each of the seven Uighurs involved in Kiyemba I has had an invitation to-resettle in another country than their homeland of China, where they fear death or torture. Two have accepted invitations to go Switzerland, and five had an offer to go to the Pacific island nation of Palau or the Indian Ocean island nation of the Maldives. The status of those invitations is in some dispute between the Uighurs’ lawyers and the Justice Department. That, presumably, is one of the issues the Circuit Court will either attempt to sort out on its own, or asked U.S. District Judge Ricardo M. Urbina to do so.
In Monday’s unsigned (“per curiam”) order, the Supreme Court noted that “each of the detainees at issue in this case has received at least one offer of resettlement in another country. Most of the detainees have accepted an offer of resettlement; five detainees, however, have rejected two such offers and are still being held at Guantanamo Bay. This change in the underlying facts may affect the legal issues presented. No court has yet ruled in this case in light of the new facts, and we decline to be the first to do so.”
In recent filings, the Uighurs’ lawyers asked the Court to go ahead and hear and decide the case but, if it wanted to refer it back to a lower court, it should return it to Judge Urbina. The Justice Department, which has opposed Supreme Court review of the case from the beginning, urged the Court either to dismiss the case outright, or at most to return it to the Circuit Court for another review. The Court chose to give the Circuit Court the first chance to examine the impact of the new developments, but left it with the option of passing it back to Judge Urbina to conduct the initial review.
While the order Monday brought a partial victory for the Justice Department, it also provided a partial victory for the detainees, since the Court vacated a sweeping ruling by the Circuit Court that had all but doomed the chances of any detainee winning actual release from Guantanamo unless the government were able to arrange resettlement by diplomatic efforts.
Presumably, the same Circuit Court panel that decided Kiyemba I will again have it for the next step. The opinion in the case (last February) was written by Senior Circuit Judge A. Raymond Randolph, who has written most of the Circuit Court’s major decisions rejecting legal claims by the detainees. His opinion was joined by Circuit Judge Karen LeCraft Henderson. Circuit Judge Judith W. Rogers joined the result only. It appears likely that the Circuit Court panel will call for new briefs before proceeding further.  The detainees’ lawyers do have the option of trying to get the case referred to the full Circuit Court for en banc review, if they are concerned about how the panel will react. The government has the en banc request option, too, but has no reason to want this particular panel pushed aside.
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