Tuesday, April 7, 2009

Kiyemba Kraziness

Three major decisions/filings based on the D.C. Circuit's recent decision in Kiyemba v. Obama have come in the past two days. Remember Kiyemba deals with 17 Chinese Uighurs who have been held at Gitmo for more than 6 years. The D.C. Circuit's latest ruling said that the U.S. cannot be forced to release them into the U.S. even though their confinement has been deemed to be unlawful The first was the filing of a cert petition by the detainees' attorneys to overturn the D.C. Circuit's ruling.

Cert Petition

Petitioners are arguing that the Constitution requires a habeas court to grant a remedy (i.e. release from confinement) to a prisoner that has been successful in their habeas petition. Anything less, petitioners argue, would make a habeas court irrelevant. The petition goes on to argue that the D.C. Circuit improperly put the burden on the detainees to show why they should be released when the burden is actually on the government to show why it should still be able to hold them. It cites authority from Boumediene saying that the court must be able to grant conditional release as a remedy for habeas cases.

The petition also makes some interesting arguments against the D.C. Circuit's use of immigration law to back up its decision. It says that if immigration law is allowed to trump the Supreme Court's decision in Boumediene then it eviscerates the decision as well as the Constitution's Suspension Clause. I think this argument is summed up nicely by the line "The Suspension Clause may not be eluded by thumbing to a differe nt act of Congress." The argument goes on to cite Supreme Court precedent that has trumped immigration law in the past. The most fascinating, and slightly confusing, part of the immigration section actually comes before the argument I just summarized. Just before Petitioners talk about not allowing immigration law to invalidate Boumediene and the Constitution they argue that no immigration laws have been triggered in the case because they haven't applied for immigration. It goes on to say that immigration remedies are not foreclosed to the Executive branch once they are released and specifically mentions the option of deportation. This seems to be a non-starter because we can't deport the Uighurs. We've essentially tried to do that for years since their release has been granted but no country will take them (over 100 countries have already refused). They are originally from China but we can't send them there because of the high likelihood that they will be tortured or executed. This means that deportation is out because we can't send them to China or anywhere else in the world because no other country wants them.

The petition has other arguments of course, but I won't detail them here for the sake of brevity. Important things to think about with this litigation is the impact it will have on all Gitmo detainees. Do I want the Uighurs released? Yes I do. Do I think we should release them here? That is something I'm trepidatious about, but maybe not as much as other Gitmo prisoners. The Uighurs have received terrorist training, but by all accounts have no historical beef with the U.S. However, the U.S. has kept them in wrongful captivity for years so they may have developed some resentment. However, the big concern with this case is that a decision to allow the Uighurs to be released into this country will open the door for other Gitmo detainees to be released here if we can't find another country for them. That is a much more disturbing possiblity to me.

Motions in Opposition to Renewed Motions for Contempt

Two motions here and here were filed yesterday in the D.C. Circuit asking for a denial of Petitioners' motions to holder Secretary of Defense Gates in contempt for not effectuating their release from Gitmo. Again, those filing these motions are Uighurs. In an earlier post I talked about the contempt motions and said that they were fairly unrealistic. While I see their plight and want to get them relief, I also don't think that Gates is in a position where he can release them right now. These opposition motions argue that the Kiyemba decision settles the matter once and for all because it says that a federal court cannot force a Gitmo prisoner to be released into the U.S. therefore Gates can't be held in contempt for not releasing them. The original motions filed by the petitioners also argued that Gates did not need a judicial order to release them and that he could do it on his own. I will repeat what I said in my last post concerning this matter. There is no way that is going to happen.

Another D.C. Circuit Kiyemba Decision

In this decision the D.C. Circuit says that if the political branches find a country that will accept the Uighurs then the Uighurs cannot ask for a judicial review of the likelihood that they will be tortured in that country. The same goes for the potential for the Uighurs being prosecuted and detained in the country they are sent to. The court decided that it could not issue a protective habeas writ that protected a detainee from foreign prosecution because such a writ would violate international comity of laws.

I don't have a lot to say about this case in particular. I feel like it was rightly decided because allowing for judicial review of the other Executive's determination that there is a low likelihood for torture would venture too far into the province of the Executive. I'm in even more agreement about protection from foreign prosecution. The U.S. cannot infringe on another country's right to prosecute who it wants to. We just need to trust that the Executive will do its best not to send detainees to countries where they will be tortured or likely prosecuted and imprisoned again.

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