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Law Week
The United States
VOL. 78, NO. 32
NOTABLE NEWS DEVELOPMENTS IN THE LAW
United States—Habeas Corpus
Supreme Court Cites Changed Facts,
Remands Uighur Detainees’ Habeas Ruling
he U.S. Supreme Court, citing changed circumstances, March 1 remanded a habeas corpus case
brought on behalf of 17 ethnic Uighurs from China
who are or were being held at Guantanamo Bay Naval
Base despite the government’s finding that they are not
enemy combatants (Kiyemba v. Obama, U.S., No. 081234, 3/1/10).
The court had granted review to decide whether a
federal court exercising habeas jurisdiction has power
to order Guantanamo detainees released ‘‘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 had declined to return the detainees to China
for fear that they may be persecuted as an insurgent
Turkic Muslim minority, but could find no other countries willing to accept them.
In a per curiam order, however, the court stated that
by now, ‘‘each of the detainees in this case has received
at least one offer of resettlement in another country.
Most of the detainees have accepted an offer of resettlement; five detainees, however, have rejected two such
offers and are still being held at Guantanamo Bay.’’
Because the change in facts ‘‘may affect the legal issues presented,’’ and no other court has yet considered
that issue, the Supreme Court, saying that it is a ‘‘court
of review, not of first view,’’ vacated the judgment and
remanded the case to the U.S. Court of Appeals for the
District of Columbia Circuit 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.’’
Professor Daniel Kanstroom, Boston College Law
School, Newton, Mass., who filed an amicus brief on behalf of law professors supporting the petitioners, told
BNA in an e-mail that, ‘‘While the logic of the Court’s
ruling is understandable, it is extremely unfortunate
that the Court has declined for now to resolve these
very compelling and fundamental questions while allowing the government to continue to detain people at
Guantanamo Bay. This case is about the fundamental
limits placed by law on Executive power to imprison
people for long periods of time on governmentcontrolled territory. The Court has now further delayed
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resolution of very important aspects of that issue, leaving the legal regime dangerously unclear.⬙
Alex Young K. Oh, Washington, D.C., counsel of
record for amicus Association of the Bar of the City of
New York et al. in support of the petitioners, told BNA
in an e-mail March 1, ‘‘While we are disappointed that
the Court will not decide the important Separation of
Powers question presented in this appeal, we are gratified that the Court vacated the decision of the D.C. Circuit in Kiyemba and remanded the case for further proceedings. We believe the D.C. Circuit’s opinion in
Kiyemba incorrectly held that federal courts are powerless to remedy unlawful Executive detention at Guantanamo Bay. The Court’s action today gives district
court judges an opportunity to exercise their constitutional powers to fashion an appropriate remedy for
those who are unlawfully detained at Guantanamo
Bay.’’
Sharon Bradford Franklin, senior counsel at the Constitution Project, said March 1, ‘‘We had hoped that the
Supreme Court would have taken this opportunity to reaffirm that courts must have the power to order release
where a detainee is being held illegally, to ensure that
habeas rights are meaningful.’’
Franklin added, ‘‘However, we are pleased that the
D.C. Circuit’s decision will not stand as precedent for
future detention cases, and that the Uighurs still have
the opportunity to explore appropriate relief through
the courts.’’ The Constitution Project describes itself as
seeking ‘‘consensus solutions to difficult legal and constitutional issues . . . through constructive dialogue
across ideological and partisan lines, and through
scholarship, activism, and public education efforts.’’
Men Without Country. The district court had ordered
that the Uighur detainees be released into the United
States, finding that the government lacked authority to
hold them any longer and the ‘‘exceptional circumstances’’ of this case and the need to safeguard an ‘‘individual’s liberty from unbridled executive fiat’’ warranted the requested habeas relief. The D.C. Circuit reversed, 555 F.3d 1022, 77 U.S.L.W. 1526 (D.C. Cir.
2009), ruling that the district court exceeded its authority, given the political branches’ exclusive authority to
determine which aliens may or may not be admitted
into this country, and the unprecedented nature of the
habeas relief. ‘‘[W]e are certain that no habeas court
since the time of Edward I ever ordered such an extraordinary remedy,’’ the appeals court said.
The appeals court previously held in Parhat v. Gates,
532 F.3d 834, 77 U.S.L.W. 1029 (D.C. Cir. 2008), that the
government failed to show that the Uighur detainees
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were associated with the al Qaeda or Taliban terrorist
groups engaged in hostilities against the United States,
and thus were wrongly designated as ‘‘enemy combatants’’ under a Defense Department order.
But in the ruling below, it cited the ancient principle,
dating ‘‘from Roman times,’’ that a nation has the ‘‘inherent right to exclude or admit foreigners and to prescribe applicable terms and conditions for their exclusion or admission.’’
Since The Chinese Exclusion Case, 130 U.S. 581
(1889), the Supreme Court ‘‘has, without exception,
sustained the exclusive power of the political branches
to decide which aliens may, and which aliens may not,
enter the United States, and on what terms,’’ the appeals court said.
It is thus ‘‘not within the province of any court, unless
expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien,’’ the court said, quoting Knauff v.
Shaughnessy, 338 U.S. 537 (1950). The district court
cited no statute or treaty that ‘‘expressly authorized’’ its
action, and the appeals court said that it was aware of
none. The district court suggested that it was invoking
due process to protect the detainees’ ‘‘fundamental
right of liberty.’’ But the appeals court cited Zadvydas
v. Davis, 533 U.S. 678 (2001), and United States v.
Verdugo-Urquidez, 494 U.S. 259 (1990), as holding that
the due process clause does not apply to aliens without
property or presence in the sovereign territory of the
United States.
Right, but No Remedy? The district court cited the
maxim that where there is a right, there is a remedy.
The appeals court, however, cited Wilkie v. Robbins, 75
U.S.L.W. 4529 (U.S. 2007), for the proposition that not
every violation of constitutional rights yields a remedy.
As examples of such frustration, it cited sovereign immunity and the political question doctrine.
The D.C. Circuit said that these detainees were not
aided by Boumediene v. Bush, 553 U.S. 723, 76
U.S.L.W. 4406 (U.S. 2008), which, while holding that
Guantanamo detainees may pursue habeas relief, never
addressed the issue of where detainees should be released, and ‘‘specifically limited its holding to the Suspension Clause.’’ The appeals court found Munaf v.
Geren, 76 U.S.L.W. 4392 (U.S. 2008), to be closer on
point, in denying habeas relief to U.S. citizens detained
by U.S. forces in Iraq who were not seeking ‘‘simple release,’’ but rather an extraordinary order precluding
their transfer to Iraqi authorities. The Uighur detainees’
request for an order compelling the executive ‘‘to release them into the United States outside the framework of the immigration laws’’ is similarly extraordinary, and unprecedented, the court said.
Sabin Willett, Bingham McCutchen, Boston, was
counsel of record for the detainees on the Supreme
Court brief. Solicitor General Elena Kagan represented
the United States.
BY THOMAS D. EDMONDSON
Full text at http://pub.bna.com/lw/081234p.pdf.
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