Court Orders Briefing on Kiyemba, Uighurs' Case

The Supreme Court on Friday ordered new briefing in Kiyemba v. Obama, the case testing the government's ability to detail the remaining Chinese Muslims, or Uighurs, at Guantanamo Bay even after everyone agreed--and a federal district court ruled on habeas--that there is no basis for detaining them.  The move comes after the government earlier this month found a new home (outside the U.S.) for the remaining Uighurs, thus mooting the case.  We most recently posted on the case here; Linda Greenhouse provides background and commentary for the NYT here.

Recall that Judge Urbina on the U.S. District Court for the District of Columbia ruled in the Uighurs' favor and ordered their release into the United States (because at that time the government found no other country to take them).  The circuit court reversed, however, ruling that release into the U.S. was an immigration matter and therefore an issue for the political branches (and not the courts) under the Constitution.  Under the circuit court ruling, if the Uighurs were to be freed in the U.S., Congress and the president would have to authorize it.  (This the government refused to do for any number of political reasons.  The government's official position at one point in the litigation was that the Uighurs posed a threat because they were angry that the government wrongly held them so long.)  The ruling effectively negated any habeas remedy the Uighurs had, as long as the government had no place to send them.  This was illustrated by the government's position in the wake of the ruling: The Uighurs were free to leave Guantanamo; they just didn't have any place to go.

If the Supreme Court now rules the case moot (and thus declines to review the circuit court case), it would leave intact the circuit court ruling, eviscerating any remedy on habeas (and thus eviscerating habeas itself) for any class of detainees that the government cannot relocate (and refuses to relocate within the U.S.).  This may be a narrow class of detainees, or it may be broad; this all depends on how toxic any particular detainee becomes merely as a result of their detention.  (Recall that the government at one point considered the Uighurs a threat merely because it detained them (!).  The government couldn't return them to their home country, China, because of a continuing threat of persecution because of their beliefs.) 

SDS