Kiyemba v. Obama

From ScotusWiki

Jump to: navigation, search

Docket: 08-1234

Issue: Whether a federal court exercising its habeas jurisdiction, as confirmed by Boumediene v. Bush has no power to order the release of prisoners held by the Executive for seven years, when the Executive detention is indefinite and without authorization in law, and release into the continental United States is the only possible effective remedy.

Contents

Briefs and Documents

Decision

VACATED AND REMANDED WITHOUT ARGUMENT in a Per Curiam opinion.

Merits Briefs

Amicus Briefs

Certiorari-Stage Documents

Pre-Argument Articles

Commentary on dismissal

Lyle Denniston originally wrote the following for SCOTUSblog:

On March 1, the Supreme Court ordered the D.C. Circuit Court to take a new look at the case testing federal judges’ powers to order Guantanamo Bay detainees released from custody — a case the Justices had granted and were to hear later this month. In a brief order, without noted dissent, the Court said the Circuit Court was to decide “what further proceedings in that court or in the District Court are necessary and appropriate for the full and final disposition of the case in light of…new developments.” The case is Kiyemba, et al., v. Obama, et al. (08-1234). The “new developments” are offers to resettle the seven Chinese Muslim Uighurs remaining at Guantanamo.

The Justices’ action has two immediate effects: first, it wipes out the Circuit Court’s earlier ruling that federal judges have no power to order release into the U.S., even temporarily, because that is an immigration matter exclusively for the President and Congress, and, second, it means that the Justices will not have any final ruling this Term on detainee matters, putting the Court on the sidelines while the two other branches of government work out where to go next on policy involving capture and detention of individuals during the government’s “war on terror.” President Obama wants to close Guantanamo, but there are efforts in Congress to keep it open in order to assure that no detainee reaches the U.S. shores, even for further detention. There are also efforts on Capitol Hill to block any criminal trial in the U.S. of a Guantanamo prisoner, including those who have been charged with the 9/11 terrorist attacks. A third effect of Monday’s order very likely will be that the Court may not act this Term on a second Kiyemba case (same title, docket 09-581) that offered another opportunity to explore the courts’ authority to deal with Guantanamo captives’ fate. That case involves some of the same individuals who appealed in the case the Court agreed to hear in October. (The granted case is now informally known as “Kiyemba I.” The case in 09-581 is thus known as “Kiyemba II.”)

Both cases were sequels to the Supreme Court’s ruling in Boumediene v. Bush in June 2008, establishing a constitutional right for Guantanamo prisoners to challenge their continued detention. The new appeals thus were attempts to test whether, in implementing Boumediene, federal judges had any authority to require the actual release of a detainee even in situations where the government no longer had any basis for confining them. The government no longer considers any of the Uighurs to be enemies of the U.S., but takes the position that their movement out of Guantanamo is solely within the diplomatic power of the U.S. government to arrange for their resettlement elsewhere.

Each of the seven Uighurs involved in Kiyemba I has had an invitation to-resettle in another country than their homeland of China, where they fear death or torture. Two have accepted invitations to go Switzerland, and five had an offer to go to the Pacific island nation of Palau or the Indian Ocean island nation of the Maldives. The status of those invitations is in some dispute between the Uighurs’ lawyers and the Justice Department. That, presumably, is one of the issues the Circuit Court will either attempt to sort out on its own, or asked U.S. District Judge Ricardo M. Urbina to do so.

In Monday’s unsigned (“per curiam”) order, the Supreme Court noted that “each of the detainees at issue 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. This change in the underlying facts may affect the legal issues presented. No court has yet ruled in this case in light of the new facts, and we decline to be the first to do so.”

In recent filings, the Uighurs’ lawyers asked the Court to go ahead and hear and decide the case but, if it wanted to refer it back to a lower court, it should return it to Judge Urbina. The Justice Department, which has opposed Supreme Court review of the case from the beginning, urged the Court either to dismiss the case outright, or at most to return it to the Circuit Court for another review. The Court chose to give the Circuit Court the first chance to examine the impact of the new developments, but left it with the option of passing it back to Judge Urbina to conduct the initial review.

While the order Monday brought a partial victory for the Justice Department, it also provided a partial victory for the detainees, since the Court vacated a sweeping ruling by the Circuit Court that had all but doomed the chances of any detainee winning actual release from Guantanamo unless the government were able to arrange resettlement by diplomatic efforts.

Presumably, the same Circuit Court panel that decided Kiyemba I will again have it for the next step. The opinion in the case (last February) was written by Senior Circuit Judge A. Raymond Randolph, who has written most of the Circuit Court’s major decisions rejecting legal claims by the detainees. His opinion was joined by Circuit Judge Karen LeCraft Henderson. Circuit Judge Judith W. Rogers joined the result only. It appears likely that the Circuit Court panel will call for new briefs before proceeding further. The detainees’ lawyers do have the option of trying to get the case referred to the full Circuit Court for en banc review, if they are concerned about how the panel will react. The government has the en banc request option, too, but has no reason to want this particular panel pushed aside.


Analysis of possible dismissal

Lyle Denniston originally wrote the following for SCOTUSblog.

Both sides in the next case due up in the Supreme Court on wartime detention suggested on Friday that the case might return to a lower federal trial for a new look, although government lawyers indicated that they would then try to scuttle that new review. Even so, the filing by Justice Department lawyers marked the first time that they conceded that circumstances might exist to keep the case alive. Both sides were responding to an order of the Court seeking an update on the status of seven Chinese Muslim Uighur detainees who remain in prison at Guantanamo Bay. The new government brief is here; the new brief by the Uighurs’ lawyers is here.

The Court is scheduled to hear the case of Kiyemba, et al., v. Obama, et al. (08-1234) on March 23, but recent developments in the government’s attempt to resettle the Uighurs in a country other than their homeland in China led the Justices to ask whether those events had an impact on the pending case. In the new letter briefs, the Justice Department repeated its primary preference that the case be dismissed — leaving intact its victory in the D.C. Circuit Court limiting judges’ power to order detainee transfers — and the Uighurs’ lawyers repeated their argument that the Court should go ahead and decide the case, overturn the Circuit Court, and then return the case to the District Court for another review.

If the Court were to bypass review itself this time, and return the case either to the D.C. Circuit (the possible alternative suggested by the government) or to U.S. District Judge Ricardo M. Urbina (the approach suggested by the detainees’ attorneys), the aim presumably would be to allow a lower court to be the first to examine the developments affecting the Uighurs since the Court granted review last October. But the two sides, in their new briefs, described a possible return trip to a lower court in sharply differing ways.

Solicitor General Elena Kagan did not directly endorse the idea of a new review by a lower court. Instead, she suggested that, if the Court were to refuse her request to dismiss the case (on the theory that its facts have changed too much since October), the Justices might find it appropriate to wipe out the Circuit Court ruling and return the case to that Court.. She said that the issue then would be whether the detainees’ lawyers had already forfeited any claim they might now make that they have a right to release into the U.S. even if the government has found some other country or countries where they might be re-settled.

Up to now, Kagan said, the Uighurs’ lawyers have based their claim for release into the U.S. on an argument that they have no place else to go, since a return to China would likely lead to torture, persecution or even death. Those lawyers, the Solicitor General said, have never put forth any alternative theory as to why release into the U.S. should be considered. And, she added, if they attempted to advance such a theory now in a lower court, the government “likely would argue that they have not preserved that argument.” Only if the Justices themselves believed that the detainees’ counsel had saved an alternative theory should it assign a new look by the Circuit Court.

The Uighurs’ counsel differed, arguing that the Circuit Court’s ruling against their transfer from Guantanamo should be overturned now. Such a reversal, they argued, should be based on the premise that the Circuit Court has not only failed to carry out the Supreme Court’s 2008 ruling in Boumediene v. Bush (allowing detainees to challenge their confinement), but also has brought scores of habeas cases before District Court judges to a halt, lengthening the legal limbo of many detainees.

Once the Circuit Court ruling was set aside, they went on, the case should be returned to Judge Urbina to implement Boumediene, with instructions that the judge provide “appropriate relief” including, if necessary, an order requiring that the Uighurs be released outright from Guantanamo. Judge Urbina “would consider the facts surrounding resettlement abroad,” the brief suggested, including offers by Switzerland to accept two of the Uighurs (an offer that has been accepted but not yet implemented) and possible offers for re-settlement elsewhere. If Urbina found that there was now available “an appropriate and immediate resettlement option,” it added, he would not then need to order that they be transferred to live in mainland U.S.

The remainder of the two sides’ letter briefs basically repeated arguments they had made when they filed their merits briefs in the Kiyemba case earlier. The detainees’ lawyers will shortly file their reply brief; in Friday’s letter, they indicated that that next brief will make an argument that Congress had acted unconstitutionally in barring release into the U.S. of any Guantanamo detainee.

The new letter briefs were filed Friday afternoon, after the Court had completed its private Conference. It is unclear when the Court will take up the question of the next step in the Kiyemba case. It could opt to do nothing, and simply let the case proceed to oral argument next month, with the parties discussing the new developments at that time.

Grant Write-Up

Lyle Denniston originally wrote the following for SCOTUSblog:

The Supreme Court, probably complicating President Obama’s plans to make new policy on detainees, agreed on Tuesday to rule on the power of federal judges to order prisoners released from Guantanamo Bay, Cuba. The specific issue in Kiyemba, et al. v. Obama, et al. (08-1234) is whether judges may require the release of Guantanamo prisoners to live in the U.S. itself, but the case has broader implications for all issues surrounding release or transfer of detainees.

The case — the first on a war-on-terrorism question to be heard by the Court since the new President took office — will require the Justices to explain further (and maybe try to reconcile) two rulings they had issued on the same day in June 2008: Boumediene v. Bush, establishing a constitutional right for Guantanamo detainees to challenge their continued imprisonment, and Munaf v . Geren, limiting habeas rights for individuals held by the U.S. military but facing criminal charges in another country. The Obama Administration, like the Bush Administration before it, has relied heavily upon the Munaf decision in arguing that federal judges do not have the authority to control the release or transfer of detainees. Once such a prisoner has had a chance to pursue a habeas claim, the government has contended, that is all that the Boumediene decision requires.

This was one of two cases the Court added to its docket for decision this Term.

The other new grant involves a pair of cases, joined for argument, testing whether federal law allows cargo carriers and their shipping customers to agree on the terms of transport under a single document (”bill of lading”) applying to all legs of a journey — sea and land, boat and railroad, international and domestic. The consolidated cases are Kawasaki Kisen Kaisha v. Regal-Beloit (08-1553) and Union Pacific Railroad v. Regal-Beloit (08-1554).

Both of the newly granted cases are likely to be heard in February or March.

Among other actions Tuesday, two Justices filed a strong dissent as the Court refused to hear a new case seeking to test the authority of police to stop a vehicle when they get an anonymous tip that an individual is driving while drunk, but the tip has not been backed up by the officers’ own observations. Chief Justice John G. Roberts, Jr., joined by Justice Antonin Scalia, said the Court should have granted review of Virginia v. Harris (08-1385). “The police should have every legitimate tool at their disposal for getting drunk drivers off the road,” Roberts wrote. The Court should have addressed, he said, whether police could stop a possibly drunk driver based on a tip they have not verified. If that limitation on police is what the Constitution requires, the dissent argued, “the dangerous consequences of this rule are unavoidable…The effect of the rule below will be to grant drunk drivers ‘one free swerve’ before they can legally be pulled over by police.” The Court’s order and the dissent can be found here.

The Court issued one summary ruling (found here), requiring the Seventh Circuit Court to allow a federal judge to rule on several challenges to the death sentence of an Indiana man, Joseph Corcoran, convicted of four counts of murder. The Circuit Court had allowed Indiana to reinstate the death sentence for Corcoran even though no court had yet ruled on challenges other than the one that the Circuit Court explicitly rejected. This was an error, the Justices said Tuesday in their unsigned opinion in Corcoran v. Levenhagen (08-10945). There were no noted dissents.

Among the cases denied review Tuesday was Reust v. Alaska (09-195), an attempt to test the constitutionality of a state law that requires that half of the money awarded in a punitive damages verdict in a civil lawsuit must be paid to the state treasury. The case sought to challenge an Alaska law to that effect; the petition was filed by an Alaska man who had won such a verdict in an employment dispute with an Alaska oil company.

The Justices also refused to hear a plea by the parents of a teenager shot dead by terrorists as the youth stood at a bus stop hear a Jewish settlement outside of Jerusalem in 1996. The parents of David Boim raised the question whether a 1994 law allowing lawsuits for damages for death caused by terrorists abroad applied to those who aided in the terrorist acts, but did not themselves cause the harm. The Boims’ lawsuit was aimed at a former U.S. leader of the Hamas organization, designated by U.S. officials as a terrorist group. The case was Boim v. Salah (08-1441).

Links and Further Information

Media Links

From the Blogosphere

Other Resources

Retrieved from "http://scotuswiki.com/index.php?title=Kiyemba_v._Obama"
Personal tools
Creative Commons License
SCOTUSwiki by Tom Goldstein is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License.
Based on a work at SCOTUSwiki.com.
Permissions beyond the scope of this license may be available at SCOTUSwiki.com