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Analysis: Kiyemba — going forward, or not?


The Obama Administration’s decision, announced Tuesday through various public documents and a background briefing, to transfer some of the Guantanamo Bay prisoners to the U.S. mainland for long-term detention without a trial may have a major impact on the Supreme Court’s pending review of Kiyemba, et al., v. Obama, et al. (08-1234).  One possibility is a return of the case to lower courts to weigh new or modified legal issues.

Depending upon how quickly the government moves toward relocating detainees to a newly acquired federal prison in Illinois, and also depending upon whether Congress goes along, the posture of the Kiyemba case conceivably could change even as the Court gets ready to examine it.  The prison facility in Thomson, Ill., is expected to be “fully operational” in three years, but it is doubtful the government would wait that long to begin shifting some prisoners from Guantanamo.

If Congress balks — and administration officials apparently told selected news organizations Tuesday that new legislation would be necessary — the whole process may be slowed enough that the Court case would simply go forward with things as they now are — that is, the seven detainees remain at Guantanamo, and a lower court opinion remains in effect barring their outright release from detentionThe uncertainty gives added importance to the position the Administration will take when it files its full written arguments in response to the appeal of the seven Chinese Muslim (Uighur) detainees eligible for release but still at Guantanamo.  Unless the time to file that brief is extended, it is now due on Jan. 4   There is little doubt that the government brief will lay out the new developments, and it would be no surprise if those changes influenced what it then asked the Court to do.

One possibility that could emerge — and this would be the most threatening to the detainees’ case — would be that the government would work more strenuously to shift the  main focus from habeas review, and its potential remedies, to the prisoners’ status under U.’S.  immigration laws, once they are on U.S. soil. Such a switch could lead the government to claim enhanced detention authority.

Some hint that this is exactly what the government will claim came in the most significant document released Tuesday by the Administration.  It was a letter by four members of President Obama’s Cabinet and his national intelligence director to Illinois Gov. Pat Quinn, informing him of Obama’s decision to “proceed with the acquisition of the facility in ‘Thomson.”  The full letter can be read here.

“The Federal government has broad authority under current law,” the officials said, “to detain individuals during removal proceedings and pending the execution of final removal orders.”  That is a clear reference to immigration law authority.  The word “removal” is the technical term now used for deportation.  Thus, the letter sent the message that Guantanamo prisoners not being tried for war crimes would remain detained while deportation review went forward, and until actual deportation occurred.

The Uighurs’ lawyers spent much of their own merits brief, filed Dec. 4, elaborating on a basic argument that is vital to their challenge. “This has never been an immigration case,” the brief said. The Uighurs only sought release from prison, into the U.S.  They should “remain at large,” the brief contended, until their resettlement elsewhere is resolved.

They are making that argument to counter the D.C. Circuit Court’s ruling that their case was only an immigration case, making it one that is subject to the sole authority of the President and Congress, without judicial interference, to decide who can come to the U.S.   The Administration has defended the Circuit Court’s view that the Uighurs’ case is, in fact, all about immigration authority.

From the perspective of the Uighurs and their lawyers, the case is only about constitutional law: does the constitutional right to challenge their confinement — a right given them by the Supreme Court in Boumediene v. Bush in 2008 — carry with it a right to actual release, and the opportunity to be released into the U.S. if resettlement elsewhere cannot be promptly arranged?

There is another passage in the officials’ letter to the Illinois governor that spelled out what the Administration intends about such a release.  “The President,” it said, “has no intention of releasing any detainees in the United States.”  And it added that current law adoped by Congress “effectively bars the release of the Guantanamo detainees on U.S. soil.”

In the background briefings provided for some reporters by an official identified in press accounts only as “a senior administration official,” that official was quoted as saying that detainees put in the Illinois facility would continue to be able to challenge their detention through habeas petitions. It is unknown whether that official explained how habeas would work in the immigration context.  Would it be the same as federal judges have developed it in the constitutional context mandated by the Supreme Court’s Boumediene decision?  Is release into the U.S. population a remedy in the immigration context, in the face of the President’s insistence that there would be no such release?

The Boumediene decision did not spell out what rights, if any, Guantanamo detainees would have, beyond the basic right to bring a habeas challenge.   That, of course, is one of the core issues in the new Kiyemba case.   It is unclear, at this point, whether the constitutional equation changes if detainees are no longer in an offshore prison, in Cuba, but become housed within U.S. borders.

The administration official’s concession that habeas rights would continue provided a partial answer.  That official also said that any detainees held “long term” at the Illinois prison would have a right to “periodic review” of their status. Would that be a constitutional guarantee, or something less than that?

Examining the uncertainties that could now flow from relocation of detainees to the mainland leads to the prospect that the Administration would suggest to the Court that the Uighurs’ case has become immersed in new legal complexity, and thus may need some initial sorting out in lower courts first.

If that happened, it would not be the first time that, on the eve of a Supreme Court review of a war-on-terrorism case, the government avoided that review by changing the circumstances of the prisoners involved.  That happened in both the al-Marri and Padilla cases earlier.

If the government were to suggest that in the Kiyemba case, there is no doubt the detainees’ lawyers would energetically resist, very likely contending that the case should go forward as it now is, as a straightforward sequel to Boumediene on the scope of habeas rights for individuals held without prosecution for any crimes.