Analysis

President Obama, his legal team, military leaders and diplomatic agents, along with Congress, have been engaged for months in intense deliberations over the Nation’s policy on detaining individuals who have been captured during what is called the “war on terrorism.”  They have been able to do so largely without looking over their shoulders to see what the Supreme Court might do to limit their options.  That has just changed.

The Court voted Tuesday to rejoin the conversation, and did so in a way that, potentially at least, may re-shape the whole discussion.  What had been a matter of policy choice, domestic and foreign, could now be a matter of what the Constitution will permit.  And that is not an issue that the other branches of government could put off for very long by working out a deal to end the specific case that the Justices have just voted to hear; more such cases are on the way, and, in effect, the constitutional issue is sure to linger.  It is quite likely that the Court was aware of that prospect when it opted to grant review in Kiyemba, et al. v. Obama, et al. (08-1234).

Kiyemba is a case that at least four Justices (and probably more) wanted to hear, despite strong pleas from the government’s top lawyer, Solicitor General Elena Kagan.  Urging denial of review of the plea of Chinese Muslim (Uighur) detainees to end their captivity, Kagan told the Court in May: “Activity in the political Branches on the disposition of detainees at Guantanamo Bay generally and [the Uighurs] particularly, including sensitive diplomatic undertakings, provides all the more reason for the Court to deny review.”

The Court’s choice to pursue the case anyway could not have been welcome news in the political Branches: the Court has entered the detention discussion repeatedly since 2004, and the end result has most often been a significant loss for what the other parts of the government wanted to do.  The coming decision in Kiyemba could well turn on a constitutional question, just as did the Court’s ruling in 2008 that brought the most sweeping defeat yet for government detention policy – Boumediene v. BushKiyemba, in fact, is a sequel to Boumediene, testing what detainees might expect if they successfully challenged their imprisonment under Boumediene.

It appears that the case will not be heard until March.  The Court’s February-March sitting, the earliest for which this case might be ready, starts February 22 and ends March 3, and there already are a number of cases that, technically, are ahead of Kiyemba. Thus, it might not be scheduled until the session starting March 22.  That leaves months for the other branches of government to ponder what they can do in the interim — even if the constitutionality of those options looms as an issue in the background.

The President has vowed to close the detention facility at Guantanamo no later than next January 22, but that timetable has seemed lately to be slipping. Attorney General Eric Holder, Jr., has said the government may make up its mind about detention policy by the middle of November.  Congress, in the meantime, has been busy, enacting various restrictions on the use of funds to carry out any policy involving Guantanamo prisoners — restrictions that may significantly limit the President’s options.  One curb that Congress has insisted upon most energetically is a ban on transferring any detainee to live in the U.S. as a free individual — precisely what the Chinese Muslims want, because they fear persecution if returned to their native China.

Lawyers for those involved in the Kiyemba case — now down to a group of 13 from the original 17 (four have gained their freedom and are now living in Bermuda) — have told the Court that the legislative efforts to restrict transfers may, in fact, be an unconstitutional curb on the habeas right (a “suspension of the writ”) that the Court recognized in Boumediene.  That, surely, will be an issue explored in the merits briefs in Kiyemba.

Even before the briefing schedule starts to unfold, one question arises: will the government move the case beyond the Court’s reach by finding a place where the 13 Uighurs can be re-settled, thus making “moot” their plea for court-ordered release?  (The Bush Administration and then the Obama Administration found ways to end major Supreme Court test cases on presidential detention authority of individuals captured inside the U.S. by charging them with crimes and moving them into the regular civilian courts, out of indefinite detention in military custody.)  Efforts have been made to get another country to accept the Uighurs, but those endeavors seem presently to be stalled.

Even assuming that such a transfer can be worked out between now and final action by the Court in their case, the fundamental question of federal judges’ authority to provide an actual remedy in constitutional habeas cases involving wartime detainees will continue to arise.  A significant number of cases on that very issue are pending in the lower federal courts, and many definitely will be making their way to the Supreme Court.  The D.C. Circuit Court has started putting some of those cases on hold, pending the outcome in the Supreme Court of Kiyemba, but that could be only a temporary delay.

At its core, then, the three-way government contemplation in coming months of the law of detention is not so much a polite minuet as it is a serious rivalry between energetic branches determined to protect their own prerogatives.  If the rivalry stays focused on constitutional interpretation, though, the Justices — with the “power and duty to say what the law is” — may well have the last word.

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