“Kiyemba II” – Cruel and Unusual Punishment Determined Constitutional

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.

One of the ten detainees who brought the suit in Kiyemba II, Algerian national Ahmed Belbacha, was cleared for release over three years ago and has endured over eight years of incarceration in U.S. custody. During his incarceration by the U.S. he was tried in absentia, convicted, and sentenced to 20 years by the Algerian government. He has asserted in filings that he "has been threatened with death by an Islamic terrorist group in Algeria," and the Algerian government views him as a deserter.

If Belbacha had "immigrated" to the United States legally or illegally he could become an "asylum seeker." In lay terms, asylum is legal protection against deportation based on fear of persecution in their home country. Pursuant to the United Nations Convention Relating to the Status of Refugees from 1951, a refugee is a person who owing to a well-founded fear of being persecuted on account of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of their nationality, and is unable to or, owing to such fear, is unwilling to avail him/herself of the protection of that country.

Immigration Judges, albeit within the Department of Justice, adjudicate these issues on a regular basis. What the government cleverly accomplished in the case at hand was to provide facts that seemingly render the questions moot or "unripe." The Court is well aware that there will be more detainees undergoing similar issues and it cannot be that three to five years of political and legal wrangling is an acceptable consequence of avoiding what the Court titles as a non-justiciable issue.

In the meanwhile, detainees such as Belbacha have endured captivity aboard Guantanamo for the last eight years fighting for freedom and the opportunity to enjoy that freedom after they are released. The United States has created a probable death sentence for this man after we have deprived him of eight years of his life and "poured salt on the wound."

The Eight Amendment to the Constitution was adopted as part of the Bill of Rights, in 1791. It states that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." It would appear that releasing Belbacha or any similarly situated detainee back "into the wild" without their say or consideration for their welfare in the face of credible concerns of bodily harm and indefinite incarnation directly upon release after eight years of liberty deprivation clearly violates the Eight Amendment. I use the phrase "into the wild" as we are treating people worse than animals who are rehabilitated to reintegrate into the wild.

Our jurisprudence should flatly reject any decisions which accepts, facilitates or perpetuates indefinite detention. We need to adopt a Donald Trump "your fired" method of adjudication. To enable the government to keep shooting closing-moment three-pointers to avoid judicial scrutiny is a contorted manipulation of our judicial system. Does it really take three years for our government to negotiate the transfer of an individual? The Supreme Court must decide the constitutional issues and let Congress and/or the Executive Branch determine how to fix themselves -- not give them unlimited bites at the rotten apple.

[Image via christopher dune.]