The D.C. Circuit Court, told by the Supreme Court to take a new look at a significant Guantanamo detainee case, on Wednesday ordered lawyers to appear for a 30-minute oral argument on the case next week.  In a one-page order in the case that has come to be known informally as “Kiyemba I,” the three-judge panel set the hearing for a week from Thursday, at 9:30 a.m., with the time divided equally.  The Court will face two basic issues: whether to order new fact-gathering on the fate of the five detainees involved, and whether to simply put back into effect the prior ruling that the Supreme Court had vacated on March 1.

The case (Kiyemba v. Obama, Circuit docket 08-5424) involves one of three D.C. Circuit rulings that are sequels to the Supreme Court’s 2008 decision in Boumediene v. Bush, giving Guantanamo detainees a constitutional right to challenge their continued confinement.  The “Kiyemba I” case has been to the Supreme Court and back; it tests whether a federal judge has the authority to require the release of a detainee to live in the U.S., at least temporarily, but it also involves the much broader question of judges’ power to implement the ancient habeas writ, when the Executive Branch insists that only it and Congress can resolve the detainees’ ultimate fate.

The case involves five detainees who are Chinese nationals, part of the Muslim sect of Uighurs, who have been at Guantanamo for just short of eight years.  They have been cleared for release from that U.S. military prison, but remain there because the U.S. government will not return them to their homeland in China because of their fears of persecution or death there and because they have not been re-settled to another country.  Although the Obama Administration argues that they could be released to another country if they would simply agree to go, the detainees’ lawyers have said the situation is murkier than that.  That is why the detainees want the case sent back to a federal District Court judge to sort out the facts before their ultimate legal fate can be determined.

The Administration, though, insists that there is no need for any new fact-gathering, and thus contends that the Circuit Court should simply put back into effect its February 2009 ruling that federal judges have no authority to order the release of the Uighurs into the U.S. mainland.

The Supreme Court had agreed to hear the Uighurs’ appeal last October (in case 08-1234).  The case had been scheduled for oral argument on March 23.  But, on March 1, after the Court had been notified of the transfer of some of the Uighurs, it said that the factual change “may affect the legal issues presented.”   It thus erased the Circuit Court’s February 2009 decision, and told the panel to “determine, in the first instance, what further proceedings in that court or in the District Court are necessary and appropriate for the full and prompt disposition of the case in light of the new developments.”

Since that order was issued, lawyers for the detainees and for the Justice Department have exchanged written briefs, arguing not only about what should be done next, but about just what remains at issue legally.  The nub of the disagreement, though, is on the detainees’ demand for a new round of fact-gathering and the Department’s demand that the prior ruling be reinstated.   If the Circuit Court were now to decide to return the case to District Court, it would go back to U.S. District Judge Ricardo M. Urbina, who in October 2008 ordered the detainees released into the U.S., to live there at least temporarily pending possible resettlement elsewhere than in China.

A second post-Boumediene Circuit Court ruling involving the Uighurs (also titled Kiyemba v. Obama, but informally known as “Kiyemba II“) declared that federal judges have no authority to second-guess decisions by the Executive Branch about what to do with detainees, even after their release has been cleared by the Pentagon or by a federal judge.  The Supreme Court simply denied review of that case on March 22, and nothing further has happened on it since then in the Circuit Court.

A third ruling on detainees’ rights by the Circuit Court, in Al Bihani v. Obama (Circuit docket 09-5051), was the first post-Boumediene ruling by the Circuit Court to uphold broad government power to detain individuals at Guantanamo as terrorism suspects and to sustain a District judge’s order rejecting a habeas challenge by a detainee.  The Circuit Court issued that decision on Jan. 5.  The detainee’s lawyers have sought rehearing by the full, en banc Circuit Court, and that Court has ordered the Justice Department to respond to that plea; the Department’s response is now due on May 13.

Posted in Cases in the Pipeline, Detainee Litigation