Five Chinese Muslim prisoners at Guantanamo Bay, arguing that the Supreme Court has not taken away all court authority to release detainees, on Monday asked the full D.C. Circuit Court to reconsider a three-judge panel’s rulings that they have no remedy left in court.  The plea is the latest attempt by detainees’ lawyers to get what they consider to be full implementation of the Supreme Court’s 2008 ruling in Boumediene v. Bush.  The petition for en banc rehearing in Kiyemba v. Obama can be found here; included as appendices are the Circuit Court’s two rulings in the case.

“More than two years after Boumediene,” the petition said, Guantanamo detainees’ “remedy from years of wrongful imprisonment still depends not on courts, but entirely on Executive discretion….The panel’s decision strips habeas of any judicial remedy.”  (Under Circuit Court rules, the government can respond to the petition only if the Court asks for it.)

The prisoners in the case are the five Chinese Muslim Uighurs whose case the Supreme Court had agreed to review last Term (08-1234).  However, after the government arranged plans to transfer some or all of the detainees to countries other than their homeland, China, where they fear persecution or death, the Supreme Court on March 1 sent the case back to the Circuit Court to decide on the next step.

The panel on May 28 rejected pleas by the Uighurs’ lawyer for new fact-finding on their present status and granted the governmen’s request to reinstate without substantial change the February 2009 decision that the courts have no role to play in deciding whether any non-citizens will be allowed to enter the United States.

At the time the Uighurs’ counsel appealed to the Supreme Court and won a grant of review,  there was a significant disconnect between what the Circuit Court had thought the case was about, and what the detainees’ lawyers have judged it to be.   While the Circuit Court had ruled as if the only issue were whether a federal judge could order a transfer of a detainee to live even temporarily in the U.S., the Uighurs’ lawyers contended that the case involves nothing less than whether the Boumediene ruling has any practical meaning for detainees seeking release from Guantanamo.

When the Supreme Court was considering the case, the Justice Department told the Justices that, since each of the Uighurs now had some place other than China to which they could be relocated, there was nothing left of their plea to enter the U.S.   The Court, in returning the case to the Circuit Court for another look, did not say whether it agreed with that assessment.

While the Circuit Court’s February ruling was confined to the question of judicial authority to order release into the U.S., the May decision reinstating the prior opinion went further and gave new emphasis to a separate ruling by another Circuit Court panel that judges are barred from any role on the release of deainees to any place in the world, not just to the U.S.   (The panel’s February ruling is known by the shorthand ”Kiyemba I,” its May ruling “Kiyemba III,’ and the other panel ruling on the release issue as “Kiyemba II.”  All three are implicated in the rehearing plea.)

As a result of this latest ruling, the new petition argued, “the courts have not merely lost the judicial power.   Kiyemba I and III cede it to the Executive Branch.  This is inimical to an ndependent judiciary, which, under our tripartite system, may not constitutionally cede remedy in a case or controversy to the political branches.”

The lawyers noted that Guantanamo prisoners have won release orders in 38 of 52 post-Boumediene habeas reviews conducted so far, but that the judges issuing such orders — acting under the mandates of the Circuit Court’s rulings — have concluded “that they are prohibited from providing a sure judicial remedy.”

With the fate of all Guantanamo detanees now left to the Executive Branch, the petition argued, their status is subject to continuing uncertainty, and, in fact, “appears to be changing again” now.  It added: “The Executive has announced the indefinite suspension of its plan to close Guantanamo,…has stopped or delayed releasing Yemenis who win in habeas, and in this Court and others has cited post-hoc legislation as a bar to actual judicial relief in habeas.”

The dispute is no longer only over the fate of the five Uighurs, the petition contended.  “The panel’s holding goes well beyond these [five], because it bars a district judge from ever exercising the judicial power to direct release for a successful Guantanamo” prisoner.

The plea for rehearing is based on arguments that the panel made two errors in its February 2009 and May 2010 decisions: “first, that release can never be procured by judicial order; and second, that the prisoner’s failure to elect a deportation site that he had well-founded reasons to decline forfeits his habeas remedy.”

After some of the Uighurs were offered a chance to be resettled in the Pacific island nation of Palau, and some actually took the offer, others did not.  The new petition argued again, as the Uighurs’ lawyers had done previously, that a new fact-finding hearing is necessary to determine whether they “have now elected voluntarily to live at Guantanamo.”   Arguing that the Supreme Court had given the Circuit Court an “invitation to develop a record,” the petition said, the Circuit Court should have accepted and ordered such a hearing.

The petition repeated another earlier argument: that they were not seeking a new immigration status that would allow them to enter the country; rather, they were only seeking to be brought to a federal court in Washington where the judge, who had ordered their release, would decide how to implement a release order.  (The government does not contest that the Uighurs are eligible for release, since it no longer considers them to be “enemy combatants.”)

Noting that the Circuit Court panel, in its May ruling, had relied in part on new bills passed in Congress to bar any transfers of Guantanamo detainees to the U.S. itself, the petition said that those measures “raise profound constitutional questions”  But, it added, the Circuit Court simply turned aside these constitutional claims, when “more thorough treatment” of those complaints is required.

Those congressional measures, it argued, are “just the kind of legislative retaliation” that the Constitution forbids by the clause that limits Congress’s authority to suspend the habeas right.   And, it went on, the measures also appear to be invalid “bills of attainder” because they seek to punish Guantanamo prisoners by ordering their continued confinement.

In discussing the Supreme Court’s March 1 order returning the case to the Circuit Court, the Uighurs’ counsel noted that the Justices did not dismiss their grant of review, as the Justice Department had requested, but rather vacated the panel’s February 2009 ruling and ordered a new look at changed facts.

The petition insisted that the Uighurs are making no challenge to the Executive Branch’s power to transfer prisoners it is holding at Guantanamo.  Rather, it said, the issue is the distinct one of “whether executive detention has ended (and the remedy of release — a quintessentially judicial power — is forfeited) because a detainee rejects a resettlement offer.”

(The petition for rehearing en banc in this case is one of three now pending at the Circuit Court seeking further review of important panel decisions in detainee cases.  One of the others is a challenge to a panel ruling that severely restricts the power of federal judges to consider the impact of international law on Guantanamo cases (Al-Bihani v. Obama, Circuit docket 09-5051); the Circuit Court has taken no action on that case since asking for and receiving a government response.)  The third case is Maqaleh v. Obama (09-5265), challenging a panel ruling that prisoners now held by the U.S. military base at Bagram, outside Kabul, Afghanistan, have no habeas rights in U.S. courts.  That petition, seeking panel rehearing, (discussed in this post) was filed just last week, and awaits word on whether a government response will be sought by the Court.

Posted in Detainee Litigation, Uncategorized