(NOTE TO READERS: This is the eighth of the new Guantanamo Bay cases to reach the Supreme Court in recent weeks. A lengthy post analyzing all of those cases is elsewhere on the blog; it can be read here. The new petition, likely to become known as “Kiyemba III,” is here. It has not yet been assigned a docket number. The D.C. Circuit Court decision being challenged is here.) (FRIDAY UPDATE: The case has been docketed as 10-775.)
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In a dramatic bid for the Supreme Court to protect anew the independent power of the federal courts, lawyers for five Guantanamo Bay detainees on Wednesday sought — for the second time — to revive the authority of federal judges to order actual release of military prisoners who pose no danger. The petition, Kiyemba v. Obama, to become known as “Kiyemba III,” opens with this pointed claim: “This appeal concerns the judicial power.” Tracing history back to the Founding era, and the creation of an independent federal judiciary, the detainees’ lawyers argued that what is at stake is simply the authority of such a court “to grant a remedy.”
While the petition is a plea for insulation of federal judges from political influence, it does not involve a claim that the political branches have wrested power away from the courts. Rather, the target of its fundamental complaint is the D.C. Circuit Court. The latest ruling by that tribunal in this case, the petition asserted, amounted to “abdication” of a “quintessentially judicial function,” delegating it to the Executive branch.
The question raised in this case is this: “Whether a judicial officer of the United States, having jurisdiction of the habeas corpus petition of an alien transported by the executive to an offshore prison and there held without lawful basis, has any judicial power to direct the prisoner’s release.”
The case, once before granted review by the Justices, reached the Court anew with a crucial potential vote missing — that of retired Justice John Paul Stevens, who had become the Court’s most fervent defender of detainees’ legal rights and had played a key role in getting the case accepted for review the first time around.  The earlier petition, however, was returned to the D.C. Circuit for another look, and then, for the second time, the panel of that Court barred any court order that would mandate the release of these prisoners.
Justice Stevens’ successor, Justice Elena Kagan, is expected to take herself out of any role in considering the new appeal; she was directly involved in the case earlier in her former role as U.S. Solicitor General.
The case involves the final five of a larger group of Chinese Muslim (Uighurs) who have been at Guantanamo since 2002. Not long after their initial detention, the U.S. military concluded that they were not “enemy combatants” with links to terrorism. They have never been charged with a crime. A federal judge, more than two years ago, ordered their release to live temporarily in the U.S., concluding that there was no place else in the world where they could be safely resettled. They are part of a long-persecuted minority in western China, and fear torture, or worse, if returned there. The federal government has indicated that it would never attempt to send them to China.
Others among the group of Uighurs at Guantanamo have been sent to live in Bermuda, the Pacific island of Palau, and Switzerland. There are no outstanding offers for any of the remaining five to be resettled, according to their lawyers. Attached to their new petition, but not available publicly, is a secret catalog of the efforts to resettle them. That document contains information that the federal government does not want made public.
While the specific issue in their initial appeal to the Supreme Court was whether a judge had the authority to order them released into the U.S. to live, their case, as their lawyers have always viewed it, is broader than that, and involves, they claim, a basic issue of separation of powers. That issue arises in an area, the petition argued, where history over centuries has always protected the power of judges to order release from confinement: the authority they derive from the ancient writ of habeas corpus.
The Supreme Court, in the 2008 decision in Boumediene v. Bush, ruled for the first time that the Guantanamo prisoners have a constitutional right of habeas, to be pursued in lower federal courts in Washington, D.C. But, in the new petition, the Uighurs’ lawyers argued bluntly that their case “presents a direct conflict between Boumediene and the law of the [D.C.] circuit.”
While the Boumediene decision held, the petition said, that “the judicial officer must have adequate authority to issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release,” the law of the D.C. Circuit is “that the [judicial] officer can do nothing more than accept assurances from the jailer….Boumediene held in 2008 that the judges were duty-bound promptly to dispose of cases; in 2009, the court of appeals barred them from ever issuing a judicial decree.”
In May 2010, the Circuit Court panel reinstated its 2009 decision, after the case had been sent back to it by the Supreme Court. In the latest decision, in “Kiyemba III,” the Uighurs’ petition said, the Circuit Court “has rendered judicial relief categorically unavailable to the prevailing habeas petitioner. The only relief available is political.”
The principle at stake, the petition asserted, is “as old as Hayburn’s Case” — a 1792 ruling by two Supreme Court Justices in a military pension case that no decision of any U.S. court can constitutionally be revised by an action of the political branches. That case, according to the petition, illustrated the then-new Constitution’s separation of powers doctrine, meaning that a district court’s power to enter a binding decree may not be made subject to “the discretionary actions of a coordinate branch.”
The D.C. Circuit, the petition argued, has breached that principle by handing over to the Executive branch the authority to nullify a federal habeas judge’s order to release a prisoner by refusing to carry it out except on the Executive branch’s terms.
The Justice Department, which resisted Supreme Court review of the Uighurs’ previous appeal to the Supreme Court and their claims in the lower courts, will have a chance to respond to the new petition before the Justices act on it. The response would be due in the first week in January, unless the Court extends the time for filing.
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