Lawyers for seven Chinese Muslim (Uighur) detainees at Guantanamo Bay urged the Supreme Court on Friday to rule that new laws passed by Congress to bar the transfer to the U.S. of any detainee there do not apply to any prisoner who has won a court order requiring his release.  If the laws are not narrowed in that way, the attorneys contended, they would be unconstitutional.  The arguments were made in the merits brief in Kiyemba, et al., v. Obama, et al. (08-1234), likely to be argued in late March.

An interpretation of the new laws “that would raise constitutional problems must be rejected in favor of an alternative interpretation that is ‘fairly possible,’ and that avoids the constitutional problem,” the brief argued.  One way to do that, it suggested, would be to interpret the law so that it was not actually intended to suspend the constitutional right to make a habeas challenge — a suspension that would be unconstitutional.

“To avoid constitutional infirmity,” it asserted, the new ban “should be read to exclude from its scope any person who has prevailed in habeas.”  So far, federal District judges have ordered the release of 31 of the 38 detainees whose habeas cases have been decided.  However, at least 15 of those who gained such orders are still at Guantanamo, including seven of the Uighurs involved in the Kiyemba case.

A reading of the law to exclude prisoners who have won release orders, the attorneys contended, would actually square with the view the government itself has taken of detainees who have been ordered freed.  The Uighurs, it noted, are now regarded by the government as no longer detainees, and the new laws against U.S. transfers speak only of those “detained” or designated as “detainees” as of June of this year.

Before the Court would allow the scuttling of those habeas victories, the brief said, it would demand from Congress “an unambiguous and express statement” that it was taking away habeas rights that were established by the Supreme Court for Guantanamo detainees in the 2008 decision in Boumediene v. Bush.

None of the transfer bars, it went on, “expresses an intention to deprive courts of the power to issue the release orders that Boumediene held they may give to a person who prevails in habeas.  Congress confined itself to the many Guantanamo prisoners who have not prevailed in habeas.  This construction makes particular sense in a political context in which the President had announced a broad intention to close the prison [at Guantanamo], and Congress’s concern might be with the undifferentiated relocation of the prison population, including those properly held….To avoid the constitutional problem, it may be assumed that it was only to this general population, and only to extent of the identified agencies and budgets [covered expressly by the bans], that Congress referred.”

If, however, those provisions are read to bar release of the Uighurs, who won their right to release 14 months ago, the bans would violate the Constitution’s Suspension Clause, the ban against legislative punishment (“bills of attainder”), and the guarantee of equal protection of the laws. the brief argued.  In addition, elsewhere in the brief, the Uighurs’ lawyers argued that failure to carry out their actual release as a habeas remedy would violate the Constitution’s guarantee of due process.  The brief also argued that indefinite confinement, without a chance for release within a specific time, violates the Geneva Convention treaties on the rights of prisoners.

The brief is a wide-ranging complaint that the Supreme Court’s Boumediene decision — and the rights it recognized for detainees — have been frustrated by a combination of actions of the D.C. Circuit and the federal government (most recently, the Obama Administration).   “At Guantanamo, where winners and losers remain, habeas corpus is an academic abstraction. Imprisonments drag deep into the eighth year, doubling the detentionis of real enemies in past conflicts.  The calendar rebukes the ancient boast of the Judicial Branch that habeas is a ‘swift and imperative’ remedy.”

Life in the prison on the island of Cuba, the Uighurs’ counsel asserted, “is unperturbed by this Court’s decrees.”

In essence, they contended, the government, aided by the D.C. Circuit majority, has succeeded in compromising any effort by the judiciary to enforce habeas rights so that actual release becomes a reality.  As a result, the brief commented, the District Court judges who have ruled in favor of the detainees are left with power only to “encourage” the Executive Branch to engage in diplomacy to try to win a resettled place for detainees in other countries.

The brief thus introduced the Court to a phenomenon that was unheard-of at the time the Court issued its Boumediene decision guaranteeing a constitutional right to challenge Guantanamo detainee.  That phenomenon is the so-called “Kiyemba order.”  Taking its name from the Circuit Court ruling in this case, holding that federal judges have no authority to order the transfer of any detainee to the U.S., such an order announces that a detainee is to be released, but then defers to diplomatic efforts to see if release could ever be arranged.

From the perspective of the D.C. Circuit majority, the brief said, “the only judicial power was to accept assurances that the Executive would continue to follow a path of proven failure.”  The actual message from the Executive in the Uighurs’ case, it added, “was that no release was in prospect.”  In effect, the brief said, “the Executive has complete license to withhold freedom after losing cases.”

The brief also lambasted the Obama Administration for another tactic, which the lawyers said amounts to the Executive Branch assuming “effective control of the judicial function” in a further way.  When a hearing is imminent in a habeas case, or a government filing was due, government officials have cleared that particular detainee for release, and then obtained a stay of the case, leaving detainees still at Guantanamo months later with no prospect of actual release.

The government’s brief on the merits in this case is due in 30 days, unless it obtains an extension of time, although such requests are not favored under the Court’s Rules.

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