Tuesday, December 15, 2009
The petitioners in Kiyemba v. Obama, the Chinese Muslims still detained at Guantanamo Bay, filed their merits brief at the Supreme Court last week in their case challenging the government's authority to continue to detain them. Recall that the Uighurs filed a habeas case in the D.C. District and won release. Judge Urbina ordered their release into the United States (because the government couldn't at that time find another country to take any of them). The government appealed and won at the D.C. Circuit on separation-of-powers grounds: The D.C. Circuit ruled that the lower court had no authority to order release into the U.S., because the political branches, and not the courts, have power over immigration. I most recently posted on the case here.
The Obama administration has since searched for a home for the Uighurs, relocating some of them to the Bahamas and Palau. And Congress enacted legislation prohibiting the government from using funds to relocate detainees within the United States.
The remaining Uighurs last week filed their brief at the Supreme Court. Substantively, there's nothing new here. But two things stand out and make the brief well worth your time. First, the brief puts together in one place the timeline of the Uighurs' detention and litigation--a concise statement of the government's foot-dragging and legal maneuvering in the case. Next, the brief underscores the significance of the case: If the Court upholds the D.C. Circuit, the case threatens to become the twenty-first century Mezei--a widely criticized relic in which the Court upheld an alien's detention at Ellis Island (variously described by the Court as "harborage," "temporary haven," and "exclusion") without a hearing based on alleged secret information.
The Uighurs' argument is simple and elegant: They won on habeas; the remedy on habeas is release (citing Boumediene); and the only place they can go is the U.S. But the argument runs up against the government's position, and the D.C. Circuit's ruling, on separation of powers and the courts' lack of authority over immigration. If the Court buys this point, the case could mean that the government could detain indefinitely--for immigration reasons, not enemy combatant reasons. If the Court doesn't buy this point--and instead upholds Judge Urbina's decision--it could put the Obama administration in a very tough spot: The administration would have to release the Uighurs into the U.S., or make the difficult sell to other countries that the Uighurs are too dangerous for the U.S., even after our highest court ordered release, but yet not too dangerous for them.
The government argued in its cert. brief that the Uighurs are no longer detained as enemy combatants and are free to go to any country that will take them. None will, at least not yet. As the government continues to move to close Guantanamo--President Obama formally announced just today that the government will transfer some detainees to a prison in Illinois--we might imagine that it also is moving to find a permanent home for the Uighurs and moot this case before before the Court rules.