Cases to watch in 2009: Kiyemba v. Obama

This is the case that hasn’t happened, the judicial dog that hasn’t barked. It involves the fate of (at last count) up to 13 Uighurs held at Guantanamo Bay. They were captured and turned over to American forces after fleeing from a terrorist training camp in Afghanistan’s Tora Bora Mountains to Pakistan. Hearings before Combatant Status Review Tribunals established that these detainees were members of a terrorist group affiliated with al Qaeda or the Taliban. But a federal district court determined in Parhat v. Gates in 2008 that there was insufficient evidence of such affiliation and, that, in any case, there was not sufficient evidence they had engaged in hostilities against the U.S. In effect, then, though they might be violent separatists who had received terrorist training, they weren’t our enemies, but China’s. They were good terrorists, not the bad kind that the President can detain.

The court ordered them released. While the obvious result of that order would be to return the Uighurs to China, the Uighurs were less than pleased with that option, fearing arrest, torture Chinese-style, and execution as, well, the terrorists that they are. Since it is U.S. policy not to transfer individuals to countries where they will face torture, the government has sought to place them with other countries. As I have posted before, some have been placed with Palau and with Bermuda. But at least one, and possible six others, have no country that has accepted them. Both agreements have precipitated political tensions, complicating further efforts in that direction. Other countries quite understandably are leery of Chinese demands that these people be repatriated to China. They also wonder why the U.S. doesn’t just release them within its own territory, if they are so harmless.

As other such “good” terrorists, the Uighurs prefer to remain at Guantanamo over being returned to China. But most they want to be released into the U.S., which the district judge ordered. He claimed that the remedy was exceptional and needed to be imposed to protect the Uighurs from “unbridled executive fiat” even though they had made no attempt to comply with the immigration laws. No word from the judge about needing to protect the American people from unbridled judicial fiat that ignored the immigration laws and the admitted exclusive authority of the political branches to determine the admission of aliens into the country.

The Court of Appeals quickly stayed the order and, on February 18, 2009, reversed the district court. In June of this year, Congress passed a law that severely restricts the President’s power to resettle Guantanamo detainees within the U.S. (or anywhere else), a law that itself presents interesting separation of powers issues. One of the delicious ironies of the case is that liberal critics of unilateral executive power are suddenly discovering its constitutional virtues along with a new-found skepticism about Congressional actions, such as this law, that “complicate” President Obama’s efforts regarding Guantanamo detainees. As is so drearily predictable, political preferences trump constitutional principles.

The appellate court reversed the district court with a rather resounding endorsement of the power of the political branches and of the President, in particular. However, the court expressly declined to opine about the President’s power to ignore the immigration laws and to release people into the U.S. without Congressional consent. That issue would present a more complex question under constitutional separation of powers within the Youngstown Sheet and Tube Co. v. Sawyer (1952) analysis, Justice Jackson, concurring. The court criticized the district court’s ambiguous reasoning, noting that the lower court cited no treaty or statute, and did not go beyond constitutional generalizations, such as reference to some undefined “constitutional imperative.” The appellate court concluded that the district court, though not specifying it, may have considered this to be a due process issue under the Fifth Amendment.

The district court apparently also relied on the maxim that, where there is a right, there is a remedy. This is a “principle” often resorted to by courts when they want to reach a certain result, or when they want to decorate some conclusion with a high-sounding phrase, particularly in Latin (”ubi jus, ubi remedium”). Chief Justice Marshall in Marbury v. Madison made this one of the steps in his process of reasoning to an interim conclusion that Marbury had a right to the requested writ of mandamus. But the court of appeals rightly rejected that maxim and pointed out that, for example, sovereign immunity and the non-justiciable political questions doctrine can defeat it.

The appellate court noted the ancient principle, long accepted by the United States since the Philadelphia Convention, that a nation has the inherent right to exclude or admit foreigners and to prescribe the terms of admission. The Supreme Court has recognized that inherent authority, and the exclusive power of the political branches to exercise it, for well over a century in case after case, beginning with the Chinese Exclusion Case in 1889. As Justice Frankfurter declared in his concurring opinion in Harisiades v. Shaughnessy  in 1952, quoted by the court, “Ever since national states have come into being, the right of the people to enjoy the hospitality of a State of which they are not citizens has been a matter of political determination of each State [and] wholly outside the concern and competence of the Judiciary.”

Nor does the district court’s invocation of some variant of constitutional rights alter the analysis. The appellate court cited to Shaughnessy v. United States, ex rel. Mezei (1953), in which an alien was denied entry into the U.S. as ineligible under the immigration laws and held at Ellis Island, New York. No other country would take him, and the prospect of indefinite detention loomed. Rejecting Mezei’s petition for a writ of habeas corpus, the Supreme Court determined that Mezei had not been deprived of a constitutional right. The prospect of indefinite detention did not empower the courts to order Mezei’s release into the U.S. The principle that aliens outside the U.S. do not enjoy constitutional rights was endorsed by the Supreme Court in numerous other cases, of both older and younger vintages.

The appellate court was equally unpersuaded by an “equity” argument, that the Uighurs deserved to be admitted into the U.S. because they had been held so long at Guantanamo. The court observed tartly that habeas corpus is not “compensatory.” The Uighurs have been released from their “detention”; they just have not found a place (other, one supposes, than China) to go. 

The Uighurs also argued that the fact of habeas corpus jurisdiction always gives the courts the power to order the prisoner’s release from unlawful detention. The court noted that the Uighurs asserted that “the Executive has cited no decision in which a federal court has withheld a remedy from a civilian held in a military prison indefinitely, and without charge, when that civilian is within its jurisdiction and enjoys the constitutional privilege of habeas corpus.” The appeals court neatly turned that argument against the Uighurs: “But petitioners seek an extraordinary remedy. We therefore think it more significant that petitioners have cited no case in which a federal court ordered the Executive to bring an alien into the United States and to release him here, when the alien was held outside our sovereign territory and had not even applied for admission under the immigration laws.” The only cases where the Supreme Court upheld even temporary release by courts of aliens into the U.S. were based on federal statutes and involved aliens held inside the U.S. (which also were accorded minimal due process rights). It is likely, incidentally, that the Uighurs would not qualify for admission under the immigration laws.

That, of course, raises the question whether the Supreme Court’s case in Boumediene v. Bush meant that the Guantanamo Naval Base in Cuba was under the sovereignty of the U.S. Even though the Court in that case recognized that the U.S. had sufficient control to constitute de facto sovereignty over the territory for the purpose of applying the writ of habeas corpus to the area, the Court did not hold that the area constituted sovereign territory of the U.S., open to habitation by the general population of the U.S. Indeed, the Boumediene court agreed that it had never extended any constitutional rights to aliens detained outside the U.S. and specifically limited its holding to the Suspension Clause.

Leaving aside the Boumediene court’s dubious constitutional history regarding the writ of habeas corpus, the writ is a matter of separation of powers and involves a court’s ability to order release for unlawful detention, among which might be unlawfulness due to violation of constitutional rights. But that is not the full extent of “unlawfulness.” An alien might be ordered released due to unlawfulness for other reasons (e.g., statutory or treaty-based rights, including those found in applicable provisions of the Geneva Conventions and made a part of domestic law). Therefore, the existence of the remedy of the writ of habeas corpus does not suppose the existence of constitutional rights, either a priori or a fortiori, extraneous to the writ itself. Nor does the power to order their release from detention allow the courts to release them in whatever way they or the applicant desire.

Senior Judge Randolph’s opinion was singularly unimpressed by Judge Rogers’s concurrence. Judge Rogers read the executive’s power more narrowly and the judiciary’s power more broadly than did the court. Under her interpretation, only Congress could authorize the executive to refuse to admit aliens into the U.S. Whatever the validity of that rather crabbed reading of the President’s power to refuse admission to aliens under his executive power or as commander-in-chief, Congress’s June, 2009, statute that not only permits him to refuse admission to the Uighurs, but fairly commands him to do so, should assuage Judge Rogers’s separation of powers concerns in that regard.

It is difficult to predict what Justice Kennedy, er, I mean the Supreme Court, will do, if it ever takes the case. The Court failed to take it up at three separate conferences, probably hoping that the President’s efforts to resettle the Uighurs through diplomatic channels bear fruit and make the matter moot. However, that may be a fruitless strategy, in light of other Guantanamo detainees’ likely challenges to decisions by the President to release them to countries they do not want. At some point the executive power to determine the release of aliens held outside the U.S. will need to be addressed.

Given that the Court took the case and has held on to it, I would not expect the Court to punt on the issue and hold that the matter is a non-justiciable political question. That also is not the manner in which the Court has addressed other cases in this area. The Court might take Judge Rogers’s position that the Uighurs have constitutional rights. Given the Court’s recent adventurism in this area regarding habeas corpus rights of aliens at Guantanamo, and the Court’s demonstrated willingness in Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008) to disregard or at least distort longstanding precedent and long-understood constitutional separation of powers doctrine, it is well within the realm of possibility that Justice Kennedy will be swayed by some sentimental constitutionalism. Even the two-year increment of constitutional creationism by the Court lines up for the Uighurs. Also encouraging for the Uighurs must be the fairly high rate of reversal of lower courts when the Court grants a writ of certiorari where there is no split between circuits. If they have such constitutional rights, the remedy is to be released effectively, that is, into the U.S. until an alternative is found for them, if ever.

On the other hand, the “Rule of Four” for granting such writs of certiorari means that the lower court might be upheld, if only 5-4. And these are 5-4 cases, whichever the decision. I think the Court would be very reluctant to order the President to release aliens into the United States that the President deems dangerous. Not only is there no constitutional precedent for that, but Congress has now weighed in against it. Were the Court to do that anyway, there would be enormous political blowback. And, Heaven forbid any of the Uighurs should be found to participate in any successful plot later. More immediately, every detainee would seek to litigate his repatriation and demand that he be admitted to the U.S.

There are three ways the Court could proceed, if the justices do not want to inject the courts into this process. Most obvious, the Court might well decline to address for this issue whether the Uighurs have any constitutional rights, thereby leaving for the future whether people released from Guantanamo might be able to sue American officials for damages for deprivation of constitutional rights. It isn’t truly necessary to decide this point. The Court could simply declare that, whatever the claim of constitutional rights, the Uighurs have a right to be released, but not a right to be released to a particular place without executive and/or Congressional approval.

Or, the Court could state that, to be effective, the writ requires that someone be released to a particular place and that, without such possibility, the writ should be denied as unenforceable. I don’t think that will be the result, as it would too blatantly confess the impotence of the Court. Better then, from the perspective of institutional legitimacy to decline to decide this by finding it to be a non-justiciable political question.

Third, the Court might address the claim that the Uighurs at Guantanamo have no constitutional rights (reaffirming Mezei), and that the writ cannot go beyond addressing the fact of confinement based on their status as enemy combatants. Though not entirely necessary to answer the immediate question whether the courts can order the Uighurs admitted into the U.S. without the political branches’ agreement and without compliance with the immigration laws (another matter where the judiciary is highly circumscribed in its freedom of decision), the Court might use the case to shine a yellow or red signal regarding the expected flurry of lawsuits by former detainees seeking damages from U.S. officials.

Whatever the result, the case likely will produce some spirited opinions and be a close-run matter, quite typical of separation of powers disputes.

UPDATE: The Court today accepted review of the case for early 2010.