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New defeat for detainees

Reacting to a Supreme Court order to take a new look at judges’ power to control the release of detainees from Guantanamo Bay, the D.C. Circuit Court on Friday refused to order a new fact-gathering hearing for five Chinese Muslim (Uighur) prisoners and instead put back into effect a ruling that the courts have no role to play in deciding whether any non-citizen will be allowed to enter the United States.  Thus, the Circuit Court reinstated without change in substance a prior ruling that the Supreme Court had previously agreed to review.  Whether the case will now return to the Justices is not yet known; the prospects there would not be promising, however.

A significant facet of the new ruling is that the Court became the first federal court to turn aside a constitutional challenge to the series of laws recently passed by Congress seeking to bar any Guantanamo detainee from entering the U.S.   It rejected constitutional complaints against those laws under both the clause that protects the habeas right to challenge detention (the Suspension Clause), and the clause that forbids Congress to pass laws specifically to punish someone (the ban on “bills of attainder”).  Guantanamo detainees do not have rights under either of those provisions, the panel majority concluded in Kiyemba, et al., v. Obama, et al. (Circuit docket 08-5424).

The ruling was the latest setback in the Circuit Court for prisoners at Guantanamo.  Although the Supreme Court two years ago gave those detainees a constitutional right to challenge their detention, the practical aftermath of that decision has been that the Circuit Court has steadily narrowed the legal options available under that decision.  In the latest ruling Friday, in fact, the Circuit Court panel gave new emphasis to a separate prior decision it had made further curtailing federal judges’ authority to decide the fate even of prisoners who have been cleared for release.  That other ruling bars judges from any role on the release of detainees, to any place in the world, not just to the U.S. itself.

Friday’s decision was issued in an unsigned (“Per Curiam”) opinion, but it represented the views of Senior Circuit Judge A. Raymond Randolph and Circuit Judge Karen LeCraft Henderson.  Circuit Judge Judith W. Rogers joined only in the judgment rejecting a further review of the Uighurs’ plea to enter the U.S., and she argued that the panel need not have spoken as broadly as the majority did in reinstating the prior decision of the panel (which she had not joined).  Rogers also argued that it was unnecessary for this panel to have reached any constitutional complaints of the Uighurs.

The case leaves five of the Uighurs, members of a minority religious sect in western China that has long faced persecution, with this situation: they have been offered resettlement to countries other than China (12 other Uighurs have taken that option), but have yet to decide finally on whether to accept.  The  government no longer considers them to be dangerous enemies, and has accepted their claim that they are thus entitled to be resettled.  The Uighurs’ primary aim is to avoid being returned to China, but they also have indicated that they are not fully content with the U.S. government deciding on its own what country would be an “appropriate’ one for them.  The Circuit Court’s new decision, like its prior ruling, means that the Executive Branch, together with Congress, has the authority without court interference to decide where to send them.

The government has said that it will not relocate them anywhere without their consent.  That understanding led Judge Rogers, in her separate opinion Friday, to conclude that the five Uighurs “hold the keys to their release from Guantanamo.  All they must do is register their consent.”  In view of that, Rogers went on, there is no role for a federal judge in a habeas case to play in their situation.  Their request to be released from confinement, she said, “is theirs upon consent.”

The panel’s prior ruling in February of last year was going to be reviewed by the Supreme Court during the current Term; review was granted last October and the case had been scheduled for oral argument on March 23.  However, after some of the detainees were resettled to other countries, and the government said that others had offers to be relocated, the Supreme Court on March 1 wiped out the Circuit Court’s February ruling, and told the panel to decide in the first instance what to do about the new factual developments.

The Justice Department then asked the Circuit Court to reinstate its prior opinion, with changes only to reflect the new facts.  That is exactly what the majority of the panel decided to do on Friday.  The detainees had sought a return of the case to District Court to explore more fully the circumstances of the resettlement offers, and whether there were, in fact, a proper remedy for the no-longer-legal detention at Guantanamo.  U.S. District Judge Ricardo M. Urbina previously had ordered that the Uighurs must be released, and that the only place for them to be sent was to live, at least temporarily, in the United States.

The Kiyemba cases — now known informally as “Kiyemba I” and “Kiyemba II” to distinguish between separate rulings by the Circuit Court — have become a main forum for the federal courts to explore government detention policy during the Bush Administration and now the Obama Administration.  “Kiyemba I” resulted in a ruling that federal judges have no authority to order any Guantanamo detainee sent to the U.S. itself.  That is the case the Supreme Court had agreed to hear, but then sent it back, resulting in Friday’s new ruling.

Kiyemba II” was a separate ruling, issued in April last year, that federal judges have no authority to control the transfer of detainees out of Guantanamo after finding them to be eligible legally for release.  That is a case the Supreme Court simply refused to hear on March 22.  Since that order was issued, the Circuit Court has taken no further action on it, although another Guantanamo detainee — Algerian Ahmed Belbacha — is attempting to full the full, en banc Circuit Court to reconsider “Kiyemba II” in his case (Obama v. Belbacha, Circuit docket 08-5350).  Belbacha is attempting to prevent his transfer to his homeland, where he fears torture and even death.

The Circuit Court’s ruling in the second Kiyemba case is the more sweeping of the two bearing that title.  It took away virtually all of the power that had remained to federal judges to oversee what happens to detainees after they have won a court order saying they are eligible for release from Guantanamo.   The Supreme Court gave no reason for voting to leave that ruling intact.

In Friday’s new Circuit Court ruling, in Kiyemba I, the majority used the ruling in Kiyemba II to bolster its conclusion that federal courts are without authority to oversee the ultimate fate of Guantanamo prisoners.  Citing that other decision, the majority commented Friday that the opinion there “precludes the sort of judicial inquiry” that the Uighurs were now seeking into their present status.  It added: “It is for the political branches, not the courts, to determine whether a foreign country is appropriate for resettlement.”

If the Uighurs’ lawyer were now to try to take their case back to the Supreme Court, they would be approaching a Court without one of the strongest supporters of their legal claims — retiring Justice John Paul Stevens.  Since his likely successor, Solicitor General Elena Kagan, has been involved in both of the Kiyemba cases, and had advised the Court about the changed facts in Kiyemba I, she presumably would not be able to take part in any action on a new appeal by the Uighurs.  That could mean an ultimate 4-4 split were the Court to hear a new case, resulting in upholding Friday’s ruling without a new opinion.