In a move that might head off another major Supreme Court ruling on detention policy, the Justice Department on Friday suggested that the Court consider dismissing the pending case of Kiyemba v. Obama (08-1234) as one that should never have been granted in the first place.  In its merits brief, the Department said that all seven Chinese Muslim (Uighur) detainees remaining in the case have been offered opportunities to re-settle in countries other than China, so the Court should not even consider ordering their transfer to live in the U.S. as an alternative re-settlement.

As an alternative, the Department urged the Court to uphold a D.C. Circuit Court ruling that denied federal judges any authority to order the transfer of Guantanamo prisoners to the U.S. itself.

The Court is scheduled to hear oral argument in Kiyemba on March 23, but the new government plea could end the case swiftly, if the Justices agree to the Department’s request to dismiss the case as “improvidently granted.”  The lawyers for the seven prisoners still involved in the case will get a chance to reply before the Court acts, however.  Those attorneys have already indicated that they will ask the Court to proceed to decide the case, on the premise that the seven are entitled to release now, yet remain at Guantanamo while awaiting whatever diplomatic efforts the government may make on their behalf.

A dismissal of the case would allow the government to avoid, at least temporarily, a ruling that might keep within the courts some of the power to decide the fate of prisoners at Guantanamo Bay, after they have been cleared for release.  The Obama Administration, like the Bush Administration before it, has held the view that only the Executive Branch can decide what happens ultimately to Guantanamo prisoners, even if they have won release orders in federal court or have been cleared for release by the Pentagon.  The Kiyemba case poses a direct challenge to that claim, and thus carries at least the potential for a major confrontation between the Supreme Court, the Executive, and even Congress, since the lawmakers have made repeated efforts to bar any transfer of detainees to the U.S. itself and to limit the Executive Branch’s options on re-settlement.

The government has lost — in whole or part — four major cases in the Supreme Court involving Guantanamo prisoners since 2004, and was at risk of having its options perhaps further limited in two other cases.  Those two cases, however, never reached a decision in the Court, because the government ended military detention of the two individuals involved, thus making those tests of detention “moot.”  In the Kiyemba case, the government is taking a different approach, contending that judicial intervention is no longer needed because the government’s diplomatic efforts have gone far toward achieving re-settlement, after release, of the seven Uighurs still at Guantanamo.

Two of the seven have been offered re-settlement in Switzerland, and the government’s brief told the Court that the other five had a previous offer to be sent to the Pacific island nation of Palau — an offer they did not accept, it noted.  The brief added: “All five also recently received an offer of re-settlement from another country, but they did not accept that offer either, and it was withdrawn afer several months.”  Even so, it went on, the government is continuing to seek another country that will accept those five.

Because of efforts by the government to achieve release or re-settlement of many detainees from Guantanamo, the new brief said, “the writ of habeas corpus is effective at Guantanamo Bay.”  That point obviously was an attempt to answer a claim by the Uighurs’ lawyers that the habeas writ has not worked for them, and for others at Guantanamo, because they are eligible for release yet remained confined without any certainty of release — supposedly, the ultimate remedy when a detention is not justified.

The brief argued that, if the Court were to rule in the Kiyemba case that any Guantanamo detainee had to be transferred to live inside the U.S., that “would be inconsistent with constitutional principles governing control over the Nation’s borders.  As this Court has long affirmed, the power to admit or exclude aliens is a sovereign prerogative vested in the political Branches, and ‘it is not within the province of any court, unless expressly authorized by law, to review that determination,’ ” it said, quoting from a 1950 Supreme Court ruling (U.S. ex rel. Kauff v. Shaughnessy).

Congress, it added, has exercised that power “by imposing detailed restrictions on the entry of aliens under the immigration laws, as well as specific restrictions on the transfer of individuals detained at Guantanamo Bay to the United States.”  Thus, it concluded, neither the Supreme Court’s 2008 ruling in Boumediene v. Bush (giving detainees a constitutional right to challenge their detention), the existing federal law on habeas rights, nor the Constitution’s Due Process Clause, justifies an order to send the Uighurs to live even temporarily in the U.S.

But, even if some court order were justified in some circumstances, the brief summed up, it would not be a proper action in the case of the Uighurs in view of “the government’s sustained and successful efforts to re-settle [them].”

In urging the Court to consider dismissing the case without further proceedings, the new brief argued that the Court had granted review of the case on the factual premise that release into the U.S. was the only effective remedy open to the Uighurs.  Although the brief did not say explicitly that any offer of re-settlement remains outstanding at the moment for five of the Uighurs, the offer by Palau’s government “might again be made available, although further discussions with the Palauan government would have to occur. ”

Posted in Detainee Litigation, Merits Cases