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Plea to rescue judicial power

Seeking to turn a Supreme Court ruling into a real-world result, lawyers for five detainees at Guantanamo Bay on Monday urged the D.C. Circuit Court to reject a move by the Justice Department to put back into effect a lower court decision that, the lawyers said, has left federal courts “impotent to exercise judicial power’ over the prisoners’ fate.  The lower court decision at issue was set aside March 1 by the Supreme Court (Kiyemba v. Obama, or “Kiyemba I“, 08-1234), after the Justices earlier had agreed to rule on it.  However, government lawyers then moved on March 22 to get the Circuit Court to reinstate the decision just as it was.  The government plea was discussed in this post.   The new detainees’ brief filed Monday and opposing that request is here.

The new developments represent the continuing dispute over the meaning, and impact, of the Supreme Court’s 2008 ruling in Boumediene v. Bush.  The Justices in that ruling provided little specific guidance on what lower court judges should do with the newly-declared right of Guantanamo prisoners to challenge their continued detention.  In filling in some of the gaps, the D.C. Circuit Court has significantly narrowed the scope of judicial review of detainee cases.  Congress, too, has weighed in on the fate of the detainees, leading lawyers in the new brief Monday to complain of “political hysteria” on Capitol Hill over the prisoners’ future.

In their new filing, detainees’ counsel described the deep differences in position on what should happen in the wake of the Supreme Court’s March 1 order returning “Kiyemba I” to lower courts for a new look.  The parties’ contrasting approaches, the brief said, are based on “profoundly different conceptions of the judicial power.  In the Executive’s view, all remedy is political….[T]here is no relief a court can give.”  The detainees’ view, it added, is that, having won a right to release in a federal court, “there must be relief of a judicial character,” and that should include actual release.

The Circuit Court’s “Kiyemba I” ruling, the document said, “stripped Article III courts of Article III power, turned the constitutional remedy of habeas corpus on its head, and led to more than a year of judicial impotence in the district court, leaving that court as beholden to the Executive jailer as it had been before Boumediene.”  The government’s plea for reinstatement of that decision gave the detainees’ counsel an opening to mount a broad new assault on that decision and the flaws they perceive in it.

The Circuit Court thus is now faced with two issues in the case.  First is the detainees’ plea to send the case back to a District Court judge to gather new facts, on whether the five Chinese Muslim Uighurs still at Guantanamo and involved in this particular case have any real opportunity for release from Guantanamo to live in a country other than China, where they fear persecution or death. To that request, the government has replied, no new facts are necessary, and District Court review would interfere with government diplomacy in trying to resettle the Uighurs.

Putting new emphasis on their desire to have a new fact-finding proceeding, the detainees argued that “if facts did not matter, it is hard to understand why the Supreme Court granted certiorari in the first place, and harder still to understand why a suggestion that facts have changed led” the Court to vacate the Circuit Court ruling, rather than simply denying review as the government had originally suggested.

The second issue now before the Circuit Court is the government’s plea to reinstate the original decision, which had barred federal judges from ordering the release of the Uighurs to live, at least temporarily, inside the U.S.   Much of the detainees’ new brief was devoted to arguments countering that suggestion, treating the very notion of reinstating the prior ruling as the equivalent of a new scuttling of judicial authority, leaving Executive discretion as the only remaining control on detainees’ fate.

Summoning up precedents that go back to the Civil War era, the detainees contended that what is at issue now on the meaning of Boumediene is the very nature of judicial power today.  “The Judicial Power is a power conferred by the Constitution exclusively on the Judicial branch of the government.  The Judiciary may not share its exercise with the political branches….The judicial power includes, most centrally, the power to give remedies in cases of which courts have jurisdiction….The good faith of a political branch cannot substitute for the Judicial power.”

What the Circuit Court did in “Kiyemba I,” the brief asserted, was to acknowledge a right that the Supreme Court had established, but then to deny any remedy.  The document declared: “Finding that the Executive had broken the law by holding a prisoner, a court applying Kiyemba [I] finished its judicial work by receiving a representation that the jailer would address the matter itself, using a practice — foreign diplomacy — discretionary in itself, unaffected by the lawfulness of detention, and opaque to the judiciary, the public, and the prisoner….All remedy under Kiyemba was by the grace of the Executive.”

Turning to the repeated efforts in Congress to deny Guantanamo detainees any benefit from the Boumediene ruling, the detainees’ new brief said what was occurring on Capitol Hill was driven by “political hysteria” and amounted to an unconstitutional scuttling of the right to habeas, and to an unconstitutional form of legislative punishment directed at specific individuals.  The Uighur prisoners involved in this case, the brief noted, have been singled out in congressional debates for denunciation “for political reasons.”  Citing a floor statement by Sen. John Thune, South Dakota Republican, that the Uighurs were “hardened killers bent on the destruction of the United States,” the brief said that was an absurd statement, given the fact that four Uighurs who had been released and are now living in Bermuda were “now raking sand traps for American golfers in Bermuda, a few hours from Washington.”  That kind of statement in Congress, the brief added, “reflects the danger to liberty of ceding judicial remedy to the political branches.”

With Monday’s filing, all briefs are now before the Circuit Court on the issues it must now resolve in the wake of the return of the case from the Supreme Court.