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Commentary: Widening impact for Kiyemba


As a team of lawyers ponders what to do next for 17 detainees who won a release order more than five months ago but still are confined at Guantanamo Bay, a federal appeals court decision blocking their actual release is having a spreading impact.  In the process, it is becoming a key factor in the Obama Administration’s legal policy on detainees.

The latest ruling from the D.C. Circuit Court — Kiyemba v. Obama (Circuit docket 08-5424), issued Feb. 18 — found that 17 Chinese Muslim Uighurs could not be transferred into the U.S. on a federal judge’s order issued in early October. The decision is on hold, until the detainees’ lawyers decide whether to seek en banc review by the full Circuit Court, or instead to take the case on to the Supreme Court.

The detainees’ counsel has tried twice to persuade the new Administration — the White House directly, or the Justice Department — to step in and give the Uighurs clearance into the U.S., but so far those overtures have not settled their future.  Their chances of getting en  banc review in the D.C. Circuit appear slim, since they did not win even the vote of the liberal member of the panel in February, and the full Circuit Court still has a conservative majority.

In the meantime, however, the Circuit panel’s Kiyemba decision is now being weighed in other detainee cases, affecting the possible shutdown of federal court review of detainees’ cases, the basic definition of who may be detained, and the attempt by former detainees to hold some Bush Administration officials to account for alleged torture during captivity at Guantanamo.

That spreading influence may make possible Supreme Court review of the Kiyemba decision more significant than it otherwise might have been.

The Circuit Court has been overturned three times by the Supreme Court in key cases on detainees’ rights, and it has been told twice to reconsider other detainee rulings.  The only major Supreme Court ruling in a case involving detainees that upheld a lower court ruling in favor of government policy involved a Fourth Circuit Court ruling.

All three of the Supreme Court reversals involved opinions written by Circuit Judge A. Raymond Randolph, now serving on senior status, who has become the most influential judge on the D.C. Circuit in detainee matters.  In oral arguments, he aims most of his toughest questions at detainees’ lawyers. The final opinions often reflect the views he has expressed during the arguments.

He is also the author of the Kiyemba ruling, a decision that swept so broadly that one District Court judge has questioned whether it may take away the jurisdiction of federal judges to order any releases from Guantanamo — a point that Obama Administration lawyers seemed to embrace, at least to a degree, last week.

And Kiyemba was broad enough that another District judge has wondered whether it left lower court judges any discretion about how to define the category of terrorism suspects who may be detained.

Judge Randolph also is serving on the panel that is now weighing whether to permit four former detainees at Guantanamo to go ahead with their claims of illegal torture while being held at the U.S. Navy prison in Cuba.  That is the case of Rasul v. Myers (Circuit docket 06-5209).

Last week,  Obama Administration lawyers urged the Rasul panel to impose a sweeping ban on lawsuits against U.S. military officials, claiming constitutional violations by those officials.  In doing so, those lawyers relied in part on Judge Randolph’s Kiyemba opinion, citing it for the proposition that “aliens held at Guantanamo” do not have any constitutional due process right to challenge the conditions of their confinement.

The Administration also noted — without contesting it — that the Kiyemba opinion had found that the Supreme Court’s Boumediene v. Bush decision last June was limited only to one constitutional finding: that detainees may challenge their detention, leaving open to lower courts whether detainees have any other constitutional rights.

(When the  Boumediene decision was at the Circuit Court level, before the Supreme Court took it on, Judge Randolph wrote the opinion concluding that Guantanamo detainees have no constitutional rights of any kind, including habeas.)

As of now, the only legal rights that Guantanamo detainees definitely have is the habeas right, although that is now facing perhaps considerable narrowing.

The other legal right that detainees formerly had — a right to challenge detention decisons made by military panels, under a law passed by Congress (the 2005 Detainee Treatment Act) — has now been cast aside by the Circuit Court (Bismullah v. Gates, docket 06-1197, decided Jan. 9.)

Judge Randolph was not on the Bismullah panel, but that outcome was triggered mainly by a decision last November by a panel on which Randolph was a joint author (Basardh v. Gates, 07-1192).