by Jana Ramsey, an associate at Paul, Weiss, Wharton & Garrison LLP. Ramsey is also representing a Guantánamo Bay detainee.
In a ruling that raises serious questions about the authority of the courts to order relief in habeas cases brought by Guantánamo detainees, last week in Kiyemba v. Obama, the U.S. Court of Appeals for the D.C. Circuit overturned a district court order that had granted release into the United States for seventeen Uighur detainees who the government agreed were not enemy combatants.
The Uighurs are members of a Turkic Muslim minority group who fled their native China for Afghanistan. After coalition bombing forced them to leave Afghanistan, the Uighurs were captured in Pakistan and turned over to U.S. military forces for a bounty of $5,000 a head. By May 2008, all seventeen men were cleared for release or transfer. The government itself conceded in the fall of 2008 that it considered the Uighurs to be “no longer enemy combatants.” But months later, each of these men remain at Guantánamo in a diplomatic limbo, unable to return to China where they would likely face torture and not yet welcome to resettle in a third country despite U.S. diplomatic efforts to find them a new home. Thus, facing the real prospect of indefinite detention at Guantánamo, the Uighur petitioners sought permission to enter into the United States.
District Judge Ricardo M. Urbina granted petitioners’ request in October 2008 and ordered their immediate transfer to the United States. Judge Urbina acknowledged, as the government argued, that the authority to determine whether an alien may be admitted to the United States has historically been vested in the executive branch, but went on to hold that due deference to the executive branch’s authority over immigration matters simply did not permit “indefinite detention without just cause.”
The Court of Appeals immediately granted the government’s request for a stay of his order, and in its ruling of last week, unanimously reversed.
In an opinion by Judge A. Raymond Randolph, the Court of Appeals held that a court may not review the decision of the executive branch to exclude an alien absent express legal authorization and that no such authority existed to demand that the Uighurs be released into the United States. In addressing possibly bases for such authority, the Court of Appeals concluded in summary fashion that the due process clause does not apply to detainees at Guantánamo as Guantánamo is not sovereign territory of the United States. Nor, the court admonished, is the right to be released a necessary corollary to unlawful detention or compensation for such detention. Finally, the court concluded that while release is typically the remedy in a habeas action, the circumstances of a release outside of the context of a normal immigration proceeding would make such a remedy extraordinary.
Judge Judith W. Rogers issued a separate opinion concurring in the judgment on the ground that the district court should have first ascertained whether the Kiyemba petitioners could be detained under immigration laws before deciding the issue of release, but asserting that the majority opinion effectively works a suspension of the writ of habeas corpus and compromises the power of habeas to serve as a check on arbitrary detention. The proper question in a habeas case, as Judge Rodgers explained, is not whether the court has the power to order release, but whether the executive has the authority to detain an alien in order to prevent his entry into the United States. She concluded that the power of the habeas court to order release when such detention is unlawful is a fundamental part of the nature of the writ and is necessary in order to preserve the separation of powers.
Judge Rogers, whose dissenting view in the Court of Appeals’ ruling in Boumediene v. Bush was ultimately affirmed by the Supreme Court, may again have the better argument here. As the Supreme Court took great care in Boumediene v. Bush to explain, habeas corpus is an “indispensable mechanism for monitoring the separation of powers.” Moreover, it is the role of the judiciary to determine scope of its habeas authority, not the role of the executive “whose power it is designed to restrain.” Most importantly, the Supreme Court stated in no uncertain terms that where a court has the power to issue the writ, it must have the authority to “issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release.” Thus the Kiyemba majority’s failure to fully grapple with the Boumediene opinion may lead it to its fourth reversal on Guantánamo detainee cases by the Supreme Court should it be appealed.
Pending such an appeal or action by the new administration, the implications of Kiyemba are directly and deeply troubling for the approximately fifty men at Guantánamo who are unable to return to their home countries for fear of being tortured. Kiyemba could have implications for other detainees as well. Because the federal courts cannot order a sovereign country to accept a detainee, if they cannot direct entry into the United States either, a detainee who faces barriers to repatriation for any reason could find himself at Guantánamo long after he has been ordered released by the courts, a predicament the Uighurs are all too familiar with.