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Analysis: The lurking constitutional question


Between the lines of the two-sentence order the Supreme Court issued Friday in the latest Guantanamo detainee case is a constitutional issue that has been building for 20 months.  It was actually set off when the Court decided Boumediene v. Bush in late June 2008 — although the Court at that time may not have realized it was doing so.

The question, simply put, is this: When does the judicial power to decide the legal fate of military detainees end so that, thereafter, their fates rest within the discretion of the Executive Branch (with or without action by Congress)?  That question has permeated the case of Kiyemba v. Obama (08-1234) — the first direct test of Boumediene set to be heard by the Court — at least from the time it was granted last October.  Sometimes, though, that case has seemed to focus on whether a federal judge could order a detainee transferred to live, perhaps temporarily, inside the U.S.  But Friday’s order by the Justices, calling for new briefs, brought it front and center again.

The Court’s order directed lawyers on both sides to submit new papers by next Friday afternoon discussing “the effect, if any,” of recent developments involving potential resettlement of the seven Chinese Muslim Uighur detainees still involved in the Kiyemba case.  That translates into the question of whether the Court should go on to hear and decide the case (now set for argument on March 23), or put an end to it without a ruling.

Already, the two sides in the case have telegraphed what likely will be the main point of their new briefs.  The Uighurs’ lawyers have contended that recent developments do not remove the need for the Court to decide the case; the federal government’s lawyers have argued that those same developments show that the case has changed so greatly that it should simply be dismissed without a ruling.

If it is ended, the practical — and legal — effect could well be that federal judges not only will not have the last word on the Uighurs’ plea for release, but also may lose that authority for most if not all of  the remaining prisoners at Guantanamo.  Release, as a real-world possibility, would then depend upon what arrangements, if any, the Executive can make with other countries to accept detainees — and the outcomes will have little or nothing to do with whether the detainees were entitled, as a legal matter, to be released.

The Supreme Court, in Boumediene, gave Guantanamo detainees — for the first time — a constitutional right to challenge their continued confinement by the U.S. military.  The Court thus contemplated a judicial remedy if detention were not justified — but without mandating just what that remedy would be.  Presumably, it included at least the possibility of release by court order, the traditional remedy for illegal detention.

As the federal district judges in Washington, assigned the task of implementing Boumediene, have worked through that task in the intervening 20 months, they ultimately have had to grapple with the issue of the remedy the Supreme Court had authorized them to adopt, if they found detention unjustified.   After the D.C. Circuit decided the Kiyemba case, however, they found they no longer could order release, and have it actually happen; they could only direct the Executive to use its diplomatic powers to work out release in the form of resettlement to a foreign land.

As this is working out for the seven Uighurs in the Kiyemba case, they have had offers to go to three countries — the Pacific island of Palau, the Indian Ocean island nation of Maldives, or Switzerland. As of now, the Court has been been given conflicting information on whether any of those offers remains open, and it has been given no information that any is definitely going to work out.  But what is clear is that the Executive Branch holds control over the outcomes, not the federal judges.

What Friday’s order brings into higher relief, however, is the reality that the Executive’s discretion carries with it the potential to keep the Supreme Court from ever reaching the issue of when judicial power under Boumediene ceases.  If a case does get to the Supreme Court, diplomatic efforts may work out just in time to keep the Court from hearing it.  That, in fact, is what may be happening with Kiyemba, and could happen with any potential sequel.

If the Court were now to accept the government’s suggestion to simply dismiss the case without a decision, that would leave intact the D.C. Circuit ruling that curtails federal judges’ power to have the last word on detainees’ release.  The constitutional issue lurking since Boumediene would then have been largely resolved by the D.C. Circuit, not the Supreme Court.

The government’s diplomatic efforts to secure the Uighurs’ resettlement perhaps were not explicitly intended to achieve that result, but that could be their practical effect.  Lawyers for detainees have complained in the past that the government has previously sought to protect its victories in lower courts on detainee issues by keeping a challenge out of the Supreme Court’s hands.  Their complaint has been shared by at least one federal appeals court in an earlier case (the Jose Padilla case), questioning whether the government had been attempting to manipulate the judicial process — a concern that government lawyers say is not justified.

Because detainees have succeeded, to a greater or lesser extent, in each of the Supreme Court’s major decisions on detention issues so far, counsel for the prisoners obviously have more reason for optimism than government lawyers do when a new case arises.