In Brief
– The BrennanCenter
for Justice and three other organizations submitted an amicus brief on October 31, 2008, in Kiyemba v. Bush, urging the D.C. Circuit
Court of Appeals to affirm the D.C. District Court’s decision to release 17
Uighurs currently detained unlawfully at GuantánamoBay into the United States.
Argument Presented – The amici discuss why the Constitution’s Separation
of Powers determines that the District Court has the authority to order the
Uighurs’ release into the United
States, which is the only effective remedy
in the habeas petitioners’ case.
Procedural History – The BrennanCenter submitted the amicus brief to
the U.S. Circuit Court for the District
of Columbia on October 31, 2008. The government’s
appeal is set to be heard by a three-judge panel in the Circuit Court on
November 24, 2008. Meanwhile, counsel for the Uighurs has urged the Court to
hear the case en banc.
In Detail – On October 31, 2008, the BrennanCenter for Justice, the Constitution
Project, the Rutherford Institute, and the National Association of Criminal
Defense Lawyers filed a brief as amici curiae in the D.C. Circuit Court in
support of 17 Uighur habeas petitioners who have been detained without being
charged at GuantánamoBay. The government no
longer considers these men enemy combatants, and consequently should release
them immediately. Unfortunately, if these men, who are members of a minority
Turkic diaspora in China,
are returned to their home, they may face persecution and torture as many of
their community members already have.
Under
habeas law, U.S. District Judge Ricardo M. Urbina rightfully concluded that the
District Court has the authority to order the 17 Uighurs released into the United States. The
executive branch, however, claims that the court had no authority to order
their immediate release, as the government needed time to “wind up” their
detention. This argument would mean that the judiciary has no effective power
to remedy illegal indefinite detention. In effect it would implement an executive
suspension of the Great Writ and permit the Executive to revise unfavorable, final judgments. This claim is
inconsistent with both the Suspension Clause and with the Supreme Court’s
decision in Boumediene v. Bush.
Amici
argue that the government’s appeal challenges the Judiciary’s central role in
the Constitution’s Separation of Powers. The Suspension Clause prohibits the
executive branch entirely, and the legislative branch, except in declared
instances of “rebellion or invasion,” from intruding on the Judiciary’s power
to decide habeas petitions and to grant habeas relief where liberty has been
denied without lawful basis.
Moreover,
habeas corpus—which is integral to the Constitution’s system of checks and
balances—requires a meaningful remedy if it is to serve its core purpose of
checking unlawful Executive action. The amici conclude that Judge Urbina’s
decision should be upheld, and that the habeas petitioners should be released
from their unlawful detention into the United States, where they will not
be persecuted for belonging to a minority ethnic group.
