October 22, 2009
Habeas, Indefinite Detention, and the Uighurs Head to the Court
The Supreme Court this week granted cert. in Kiyemba v. Obama, the habeas case of the Uighurs, the Chinese Muslims held now for over eight years at Guantanamo Bay.
Some background: Judge Urbina (D.D.C.) ruled last October on the Uighur's habeas petition that the government must release them into the United States. (The government then no longer considered the Uighurs detainable as terrorists, although it did fear that they might pose a threat in the United States. Why? Because they were sufficiently angry about being wrongly detained for so long (!).)
The government immediately appealed to the D.C. Circuit, arguing that Urbina lacked authority to order the Uighurs' release into the United States. The government argued that the order interfered with the political branches' authority over immigration--a separation-of-powers principle. The D.C. Circuit agreed and reversed Urbina's order, leaving the Uighurs in limbo.
Meanwhile, the Uighurs petitioned the Obama administration for release. The then-new administration rejected the request as it worked out its new detention policies. (The administration subsequently relocatedfour Uighurs to third countries. It apparently couldn't find homes for the others.)
The remaining Uighurs petitioned the Supreme Court for review, and the Court just this week granted cert.
The case now raises critical questions of the executive's authority to indefinitely detain, the courts' authority to order detainees' release on habeas in the wake of Boumediene v. Bush (holding that the privilege of habeas extends to detainees at Guantanamo Bay), and the courts' authority to order release into the United States--substantial issues, and ones that the administration might like to avoid.
The certified question presented opens the door for each of these:
Whether a federal court exercising its habeas jurisdiction, as confirmed by Boumediene v. Bush . . . has no power to order the release of prisoners held by the Executive for seven years, where the Executive detention is indefinite and without authorization in law, and release into the continental United States is the only possible effective remedy.
The government has taken the position on cert. that the Uighurs are free to leave Guantanamo to go anywhere but the United States. (Reading the government's brief opposing cert., you'd be excused for believing that the Uighurs are at Guantanamo on vacation.) The problem: nobody will take them. According to the government, this is a problem for the political branches, not the courts on habeas. But as the Uighurs ask: if the courts can't order release into the United States, of what value is habeas? And more: this amounts to illegal and unconstitutional indefinite detention. (Thanks to SCOTUSwiki for links to the cert. filings.)
The Obama administration could potentially moot the case and avoid a high Court ruling by relocating the Uighurs (within the United States, or elsewhere) and closing Guantanamo--a task apparently much easier said than done.
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