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Kiyemba case: Back to a lower court?

Both sides in the next case due up in the Supreme Court on wartime detention suggested on Friday that the case might return to a lower federal trial for a new look, although government lawyers indicated that they would then try to scuttle that new review.  Even so, the filing by Justice Department lawyers marked the first time that they conceded that circumstances might exist to keep the case alive.  Both sides were responding to an order of the Court seeking an update on the status of seven Chinese Muslim Uighur detainees who remain in prison at Guantanamo Bay.  The new government brief is here; the new brief by the Uighurs’ lawyers is here.

The Court is scheduled to hear the case of Kiyemba, et al., v. Obama, et al. (08-1234) on March 23, but recent developments in the government’s attempt to resettle the Uighurs in a country other than their homeland in China led the Justices to ask whether those events had an impact on the pending case.  In the new letter briefs, the Justice Department repeated its primary preference that the case be dismissed — leaving intact its victory in the D.C. Circuit Court limiting judges’ power to order detainee transfers — and the Uighurs’ lawyers repeated their argument that the Court should go ahead and decide the case, overturn the Circuit Court, and then return the case to the District Court for another review.

If the Court were to bypass review itself this time, and return the case either to the D.C. Circuit (the possible alternative suggested by the government) or to  U.S. District Judge Ricardo M. Urbina (the approach suggested by the detainees’ attorneys), the aim presumably would be to allow a lower court to be the first to examine the developments affecting the Uighurs since the Court granted review last October.  But the two sides, in their new briefs, described a possible return trip to a lower court in sharply differing ways.

Solicitor General Elena Kagan did not directly endorse the idea of a new review by a lower court.  Instead, she suggested that, if the Court were to refuse her request to dismiss the case (on the theory that its facts have changed too much since October), the Justices might find it appropriate to wipe out the Circuit Court ruling and return the case to that Court..  She said that the issue then would be whether the detainees’ lawyers had already forfeited any claim they might now make that they have a right to release into the U.S. even if the government has found some other country or countries where they might be re-settled.

Up to now, Kagan said, the Uighurs’ lawyers have based their claim for release into the U.S. on an argument that they have no place else to go, since a return to China would likely lead to torture, persecution or even death.  Those lawyers, the Solicitor General said, have never put forth any alternative theory as to why release into the U.S. should be considered.  And, she added, if they attempted to advance such a theory now in a lower court, the government “likely would argue that they have not preserved that argument.”   Only if the Justices themselves believed that the detainees’ counsel had saved an alternative theory should it assign a new look by the Circuit Court.

The Uighurs’ counsel differed, arguing that the Circuit Court’s ruling against their transfer from Guantanamo should be overturned now.  Such a reversal, they argued, should be based on the premise that the Circuit Court has not only failed to carry out the Supreme Court’s 2008 ruling in Boumediene v. Bush (allowing detainees to challenge their confinement), but also has brought scores of habeas cases before District Court judges to a halt, lengthening the legal limbo of many detainees.

Once the Circuit Court ruling was set aside, they went on, the case should be returned to Judge Urbina to implement Boumediene, with instructions that the judge provide “appropriate relief” including, if necessary, an order requiring that the Uighurs be released outright from Guantanamo.  Judge Urbina “would consider the facts surrounding resettlement abroad,” the brief suggested, including offers by Switzerland to accept two of the Uighurs (an offer that has been accepted but not yet implemented) and possible offers for re-settlement elsewhere.  If Urbina found that there was now available “an appropriate and immediate resettlement option,” it added, he would not then need to order that they be transferred to live in mainland U.S.

The remainder of the two sides’ letter briefs basically repeated arguments they had made when they filed their merits briefs in the Kiyemba case earlier.   The detainees’ lawyers will shortly file their reply brief; in Friday’s letter, they indicated that that next brief will make an argument that Congress had acted unconstitutionally in barring release into the U.S. of any Guantanamo detainee.

The new letter briefs were filed Friday afternoon, after the Court had completed its private Conference.  It is unclear when the Court will take up the question of the next step in the Kiyemba case.    It could opt to do nothing, and simply let the case proceed to oral argument next month, with the parties discussing the new developments at that time.