Kiyemba v. Obama

  • March 24, 2010
    Guest Post

    by Maj. (Ret.) Eric Montalvo, Esq., Founding Partner, The Federal Practice Group Worldwide Service. He has handled several Military Commission cases including U.S. v. Al Bahlul, U.S. v. Hawsawi (the alleged 9/11 co-conspirator), and the case of the U.S. v. Jawad, fighting for and securing the release of one of the youngest Guantanamo Bay detainees in 2009.


    The Supreme Court on Monday declined to review the D.C. Circuit Court's ruling in Kiyemba V. Obama (Supreme Court docket 09-581). The D.C. Circuit Court held that the judiciary may not review executive branch decisions regarding when or where to transfer detainees that it is prepared to release from Guantanamo Bay. This case is now informally referred to as "Kiyemba II." Ten current Guantanamo detainees who have been cleared for release object to being returned to their country of national origin out of fear or concern for their safety and well-being.

    In Kiyemba I, the Court granted certiorari on the question of "whether a federal court exercising habeas jurisdiction has the power to order the release of prisoners held at Guantanamo Bay "where the Executive detention is indefinite and without authorization in law, and release into the continental United States is the only possible effective remedy." In the vacation and remand to the D.C. Circuit Court the Supreme Court held that "no court has yet ruled in this case in light of the new facts, and we decline to be the first to do so."

    The Court's ruling creates uncertainty in the system which is already wrought with indecision and indefinite consternation. The Supreme Court has created an exception to the general rule that a court loses jurisdiction where there is no case or controversy and a court's decision will no longer have an impact on plaintiff. The Court has recognized that some questions may involve proceedings that are frequently repetitive, but come to a conclusion prior to the normal life cycle of litigation effectively depriving the Court of jurisdiction. The Court may assume jurisdiction where there was injury that was "capable of repetition, yet evading review." The classic example of the Court utilizing this exception is in the abortion line cases. These cases present such a circumstance and allow the government to alter the justiciability issue simply by changing the facts in the 9th inning.

  • March 22, 2010

    The U.S. Supreme Court passed on a chance to hear the second Kiyemba v. Obama, a case involving four of the Chinese Muslims, or Uighurs, detained at the Guantanamo Bay detention facility. Denying certiorari this morning, the Court let stand a lower court's decision that federal judges have no authority to review the executive branch's determinations where and when to send detainees cleared for release.

    The Court previously granted review in Kiyemba I, in which Uighurs challenged their continued detention at Guantanamo despite being cleared for release. Upon news that the executive branch found countries willing to accept each of the Uighur detainees, however, the Court remanded the case to the U.S. Court of Appeals for the D.C. Circuit. In Kiyemba II, non-Uighurs who are also slated for release to countries previously announced by the administration also joined the case.

    Among the most promising plaintiffs to join Kiyemba II was Ahmed Belbacha, according to reports. Belbacha, who the executive branch says it will release to his native Algeria, alleges that his life was threatened by terrorists there. He also contends that the Algerian military considers him a desserter, and he was tried and convictied in absentia for terrorism-related charges carrying a 20-year sentence. "Caught between domestic terror groups and a government that has already decreed a harsh sanction for him, Mr. Belbacha cannot safely return to Algeria," his attorneys told a district court earlier this month.  

  • March 5, 2010
    Guest Post

    By David J. Cynamon, a partner in the Washington, D.C. office of Pillsbury Winthrop Shaw Pittman LLP. Mr. Cynamon represents the Kuwaiti prisoners at Guantanamo.

    The Supreme Court's recent per curiam decision vacating the D.C. Circuit's opinion in Kiyemba v. Obama, concerning the scope of a federal court's habeas authority to order the release of Guantanamo prisoners, comes as no surprise. Once the Supreme Court granted review - which was something of a surprise - it was clear that the Obama administration would make every effort to moot the case before a decision on the merits. Although those efforts were largely successful, the result is good news, at least in the short term, for Guantanamo prisoners who win their habeas cases.

    Kiyemba involves the Chinese Uighur prisoners at Guantanamo. After the Supreme Court's June 2008 decision in Boumediene v. Bush confirmed that the writ of habeas corpus extended to Guantanamo, the government conceded what had long been known: the Uighurs were not "enemy combatants" and had not supported the Taliban or Al Qaeda in fighting against the United States in Afghanistan. Judge Ricardo Urbina of the U.S. District Court for the District of Columbia granted their habeas petition. But they could not be released to China, where they would suffer government persecution or worse. Nor would any other country accept them because of Chinese threats of reprisal. Accordingly, Judge Urbina ordered them released into the United States. The government appealed, and a panel of the D.C. Circuit reversed, holding that the federal courts have no authority to order the Executive Branch to admit an alien into the country.

    Although the factual issues in Kiyemba were unique, the breadth of the D.C. Circuit's reasoning significantly weakened the habeas remedy for all Guantanamo detainees. judges of the district court read Kiyemba as precluding them from granting the normal habeas remedy of immediate release for prisoners whose petitions had been granted; rather, the court in such cases ordered the government to take "all necessary and appropriate diplomatic steps to facilitate" release. These "pretty please" orders gave the government substantial wiggle room, and it took full advantage. Even in cases in which successful petitioners wanted to return to their home countries, and their home countries wanted them back, the government demanded that the home countries impose restrictions (such as withholding passports) as a condition of the prisoners' release.

    Thus, when the Supreme Court granted certiorari in Kiyemba, it appeared that at least some of the justices were concerned that the D.C. Circuit's decision had emasculated Boumediene. The government immediately stepped up its efforts to resettle the Uighurs elsewhere in order to avoid a potential reversal. By early this year, all but five Uighurs had been resettled (or had agreed to be resettled) in other countries, and the remaining five had been offered resettlement. In these circumstances, the Supreme Court logically remanded the case so that the lower courts could determine the legal impact, if any, of the new facts.

  • March 1, 2010
    The Supreme Court today ordered a lower federal court to reexamine a case involving group of Chinese Muslim detainees, Uighurs, at Guantanamo Bay. In Kiyemba v. Obama, the high court was asked whether a federal court can release Guantanamo Bay detainees into the United States. But in Kiyemba, the high court noted that "each of the detainees at issue in this case has received at least one offer of resettlement in another country." The Supreme Court remanded the case to the U.S. Court of Appeals for the District of Columbia to "determine, in the first instance, what further proceedings in that court or in the District Court are necessary and appropriate for the full and prompt disposition of the case in light of the new developments." In analysis for SCOTUSblog, Lyle Denniston says the high court's "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.'"

  • February 16, 2010

    Spain Accepts Five Detainees: Spain announces the largest commitment among European countries.

    Intelligence, Judiciary Committee Chairs Endorse Federal Trials: Senators Feinstein and Leahy pen a letter defending domestic terror trials.

    Another Senator Supports Closing Gauntanamo with Caveats: Senator Graham demands military tribunals and indefinite detention.

    International Law Expert Assesses Politics: Professor Deborah Pearlstein parses the political considerations seemingly driving Guantanamo decisions.

    D.C. Circuit Hears Argument Against Releasing Detainee: The Justice Department appealed the district court's order to release Mohammed al-Adahi.

    SCOTUS Considers Dismissing Kiyemba: With countries willing to accept all seven Uighurs at Guantanamo, the Supreme Court ordered briefing on whether to dismiss their case.