Fervently challenging the view that five Guantanamo Bay detainees remain at Guantanamo Bay only because they refuse to accept transfer, their lawyers told the Supreme Court Friday that the D.C. Circuit Court has made it all but impossible for any prisoner at the military base in Cuba to gain actual freedom even though found eligible for it by a federal judge.  Not one prisoner has been freed as a direct consequence of a court release order, the Court was told.  The Circuit Court, the new filing argued, has accomplished the virtual overruling of the Justices’ 2008 decision in Boumediene v. Bush, opening U.S. courts to Guantanamo challenges and raising the ultimate prospect of release at least for some.

The document was a reply brief, the final submission before the Justices act on a case that is popularly known as “Kiyemba  III” (docket 10-775), the latest version of a case formally titled Kiyemba, et al., v. Obama, et al., involving five Chinese Muslim (“Uighurs”) detainees at Guantanamo.  It seeks to raise a broad question about when, if ever, a federal judge in a habeas case can actually command that a detainee be freed from Guantanano.  That is an issue the Court had agreed to review in this case earlier, only to send it back to the Circuit Court to take into account some new factual developments.  The case has now returned.

The Obama Administration, in urging the Court to deny review of “Kiyemba III,” said that the habeas remedy is actually working at Guantanamo, and that releases of prisoners have come as a direct result of federal judge’s release orders.  It also contended that the Uighurs have turned down two resettlement offers, and that, if they were willing to go to a country chosen by the U.S. government, officials would now seek anew to arrange for that to happen.

Directly contradicting those arguments, the Uighurs’ reply brief said that the issue is not whether a detainee stubbornly refuses to accept resettlement to another country, but whether a federal judge has any power to actually order release — without regard to whether the government can find a country to accept that prisoner for settlement.  All that the Circuit Court will now permit a habeas judge to do, the brief said, is to ask the Executive Branch to engage in diplomacy over resettlement.  That is not what the historic habeas writ considers a remedy, the brief said.

The Circuit Court’s mandates, the document went on, have actually transferred judicial habeas power to the Executive Branch’s discretion.  There is “no law,” it argued, “that lets the Executive substitute for that historic remedy a choice by which the prisoner must volunteer to be transported — perhaps for the rest of his life– to a place with which he has no affiliation, or lose his judicial remedy.”

If the Uighurs’ lawyers were now allowed to gather, in a court proceeding, some new facts about what has actually happened with the Uighurs’ potential transfer out of Guantanamo, the brief said, they “believe that a record would show that despite the State Department’s good faith, there never was a reliable offer at all, i.e., the foreign relations of the place are such that, as soon as an offer became public, Chinese pressure would have forced its withdrawal.”  (The Uighurs are part of a Muslim sect in western China where, they say, Uighurs have been subjected for years to repression.   The Chinese government has reportedly resisted diplomatic efforts to get other countries to accept Uighurs.)

Whatever the facts with these five prisoners, the filing argued, that does not take away from the issue the Court should decide: when, if ever, is it necessary for a federal judge to order actual release of a detainee whose detention is no longer justified?   “The record [in this case] changed while the case was last here, but it frames today the core question of the Court’s judicial pwoer just as sharply and urgently as it did when certiorari first was granted in 2009.  The government focuses on unique facts, but the decision below was not confined to them.”

The government, it added, “cannot explain why the Court should not now correct a [Circuit Court] decision written to control the entire Guantanamo docket, when petitioners have suffered the same denial of judicial remedy that is now the lot of every habeas winner at Guantanamo….When is it ‘necessary;’ for the judge to direct the prisoner’s release?  The law of the circuit is, ‘Never.’ ”

The Supreme Court, instead of permitting the Circuit Court to confine federal judges to mere pleas for the government to exercise diplomacy for resettling detainees, should now order the federal judges to return to their “natural function — resolving a case or controversy before it,” and thus take it “out of diplomacy.”  “A habeas petition,” it said, “is not a request for diplomacy.  The writ does not direct that the Executive work hard; it requires the Executive either to justify detention or release the prisoner.”

Discussing the impact of the Circuit Court’s negative reaction to Boumediene, the Uighurs’ reply brief points out in a footnote that the Circuit Court’s leading critic of Boumediene – Senior Circuit Judge A. Raymond Randolph — recently made a speech entitled “The Guantanamo Mess,” accusing the Supreme Court majority in Boumediene of “blunders” and “fallacies” and suggesting that the ruling created a mess for other people — presumably, lower court judges — to clean up.   Judge Randolph is the author of several of the Circuit Court’s major rulings against detainee habeas claims, including the two rulings at issue in the Kiyemba case.

Challenging the government’s reliance on a series of laws passed by Congress to forbid transfers of any Guantanamo detainees to the U.S., for any purpose, the reply brief said those are beside the point, because it was the Executive Branch that chose to take prisoners to be detained to Guantanamo, within the reach of the U.S. courts in habeas proceedings.  But, if those laws do apply to the Uighurs and others at Guantanamo, they are unconstitutional because they violate the Constitution’s ban on suspending habeas rights.

With the filing of the Uighurs’ reply, briefing has now been completed in the case.  It has not yet been scheduled for a Conference of the Justices.   It is expected that, when the Court does act on the case, Justice Elena Kagan will not take part; as U.S. Solicitor General, she filed a number of materials in the case when it was at the Court previously.

Posted in Cases in the Pipeline, Detainee Litigation

Recommended Citation: Lyle Denniston, Uighurs defend judicial power, SCOTUSblog (Feb. 18, 2011, 12:25 PM), http://www.scotusblog.com/2011/02/uighurs-defend-judicial-power/