Five detainees cleared for release two and a half years ago but still at Guantanamo Bay filed a new plea in the Supreme Court Tuesday, seeking to make use of the suggestion by a lower court judge that federal judges have lost most of their power to bring about the actual release of a prisoner not considered to be a threat.  In a supplemental brief in Kiyemba, et al., v. Obama, et al. (“Kiyemba III,” 10-775), lawyers for the five Chinese Muslim (Uighur) prisoners put before the Court the comments last week by Senior Circuit Judge Laurence H. Silberman.  (An earlier post discussing Silberman’s views can be read here.)

Although Judge Silberman was sharply critical of the Court for issuing its 2008 decision in Boumediene v. Bush giving Guantantamo detainees a constitutional right to challenge their confinement in U.S. courts, he also was critical of the Executive Branch for failing to free detainees who have won release orders in court.  If it turns out that such detainees stay at Guantanamo, the judge argued, the whole process of implementing the Boumediene decision becomes “a charade” and courts are reduced to issuing “advisory opinions,” not binding rulings.

Those comments, the new Kiyemba III brief argued, show that “the habeas jurisdiction rccognized by this Court in Boumediene has essentially been nullified.”  That, it added, was a consequence of a decision by the D.C. Circuit Court — the decision now being challenged in the new Kiyemba petition — that has made “the judicial power moribund.”  Because of what the Circuit Court had done, the brief continued, court opinions “are indeed advisory (if even that, since the judiciary is reduced to receiving advice rather than giving it).”  The Circuit Court has concluded that the courts are not to “second-guess” the Executive Branch decisions about when actual releases from Guantanamo are to occur, and must accept what the Executive Branch says about its efforts to achieve release and resettlement.

“Process without judicial remedy is not a true judicial process, and it leaves the judiciary stripped of the judicial power secured uniquely to that branch by Article III,” the brief asserted.  Until the appeals court decision in Kiyemba is overturned, it added, “the practical reality is that no court can remedy unjustified executive detention.”

Although Judge Silberman had said that the Supreme Court had behaved in a “defiant” way by issuing its 2008 decision, the new detainee brief said it was the D.C. Circuit, not the Supreme Court, that had become defiant, of the Supreme Court.

The Justices have examined “Kiyemba III” three times at private Conferences, without taking any action on it, and are likely to do so again at the next Conference this Friday.  At this point, it is expected that Justice Elena Kagan will not take part in any action on the case, since she was directly involved with it at earlier stages in her former role as U.S. Solicitor General.

The Court is also expected to examine on Friday another Guantanamo case, Khadr, et al., v. Obama, et al. (10-751), that challenges another ruling by the Circuit Court, in another phase of the Kiyemba litigation, that severely curtailed the power of District judges to control the transfer of prisoners to foreign countries over their protest.

Those two cases are what remain of a group of eight Guantanamo challenges filed recently at the Court.  The Justices have denied review of five, and a sixth (Mohammed, et al., v. Obama, et al., 10-746) is scheduled to be dismissed because the prisoner has been sent to his home country, Algeria, making his petition moot .

Posted in Cases in the Pipeline, Detainee Litigation, Featured

Recommended Citation: Lyle Denniston, New plea by Uighurs, SCOTUSblog (Apr. 12, 2011, 10:22 AM),