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Kiyemba v. Obama (Amicus Brief)

The Brennan Center for Justice, along with a group of other organizations, has submitted three amici briefs in support of the D.C. District Court’s ruling that the government must release into the United States a group of Uighurs detained at Guantánamo Bay.

Published: December 11, 2009

In Brief – The Bren­nan Center for Justice, along with a group of other organ­iz­a­tions, has submit­ted three amici briefs in support of the D.C. District Court’s ruling that the govern­ment must release into the United States a group of Uighurs detained at Guantá­namo Bay.

Argu­ment Presen­ted – Amici argue that the Consti­tu­tion’s Separ­a­tion of Powers, and in partic­u­lar the judi­cial power under Article III, author­ize the District Court to order the Uighurs’ release into the United States as a neces­sary corol­lary to the Court’s ruling grant­ing the writ of habeas corpus.

Proced­ural History
On June 20, 2008, the D.C. District Court gran­ted one of the Uighurs’ habeas peti­tions, and the govern­ment conceded that the others would be eligible for the writ under the court’s opin­ion. On Octo­ber 8, 2008, the District Court gran­ted the Uighurs’ motion for release into the United States. The Court of Appeals for the D.C. Circuit stayed the order and, on Febru­ary 18, 2009, reversed and remanded the District Court’s judg­ment. In April of that year, the Uighurs submit­ted their peti­tion for writ of certi­or­ari to the U.S. Supreme Court, and the Court gran­ted the peti­tion in Octo­ber. The Bren­nan Center was part of a group of organ­iz­a­tions that filed amicus briefs at three stages of the case: in the Court of Appeals (filed Octo­ber 31, 2008); in the Supreme Court in support of the Uighurs’ certi­or­ari peti­tion (filed May 7, 2009); and in the Supreme Court at the merits phase (filed Decem­ber 11, 2009).

March 1, 2010– the Supreme Court has vacated the judg­ment of the D.C. Circuit and remanded the case back to that court. As the remain­ing Uighur peti­tion­ers had offers of reset­tle­ment from Palau and an uniden­ti­fied other coun­try, the Supreme Court instruc­ted the D.C. Circuit to reex­am­ine the case in light of the fact that each of the remain­ing peti­tion­ers had received offers of reset­tle­ment.


In Detail – Kiyemba v. Obama—­ori­gin­ally Kiyemba v. Bush—in­volves 17 Uighur habeas peti­tion­ers who have been detained without charge at Guantá­namo Bay for about eight years. As early as 2003, the govern­ment admit­ted that the Uighurs were not enemy combatants. Imme­di­ately upon this determ­in­a­tion, these men, who are members of a minor­ity Turkic diaspora in China, should have been released. However, if sent back to China, they likely would face perse­cu­tion and torture as many members of their community already have. The U.S. there­fore cannot return the Uighurs to China and, after several years of nego­ti­ations with foreign govern­ments, has been able to resettle only some of the Uighurs in third coun­tries. The reluct­ance of other coun­tries to accept the remain­ing Uighurs may be explained in part by the U.S. govern­ment’s own refusal to allow them to resettle in the U.S.

In Octo­ber 2008, having determ­ined that the Uighurs are entitled to release and that the govern­ment’s nego­ti­ations with other coun­tries are unlikely to succeed in the fore­see­able future (as the govern­ment acknow­ledged), U.S. District Judge Ricardo M. Urbina right­fully concluded that the District Court had the author­ity to order them released into the United States. The exec­ut­ive branch, however, claimed that the court had no author­ity to order their immin­ent release, as the govern­ment needed time to “wind up” their deten­tion.

In Febru­ary 2009, the Court of Appeals reversed the District Court. It ignored the govern­ment’s claim of “wind-up” author­ity, and instead held that the District Court’s ruling encroached on the polit­ical branches’ plen­ary power over immig­ra­tion. The Court of Appeals did not dispute that the Uighurs are unlaw­fully detained, but shrugged off their predic­a­ment with the asser­tion that “not every viol­a­tion of a right yields a remedy.” It held that the District Court could not do “anything more” than direct the exec­ut­ive branch to continue good faith nego­ti­ations with other foreign govern­ments. The Uighurs peti­tioned the Supreme Court for a writ of certi­or­ari, and the Supreme Court gran­ted cert.

The Bren­nan Center has filed amicus briefs at three stages of the case: in the Court of Appeals (filed Octo­ber 31, 2008); in the Supreme Court in support of the Uighurs’ certi­or­ari peti­tion (filed May 7, 2009); and in the Supreme Court at the merits phase (filed Decem­ber 11, 2009). The Consti­tu­tion Project, the Ruther­ford Insti­tute, and the National Asso­ci­ation for Crim­inal Defense Lawyers joined the Bren­nan Center on all three briefs; the Asso­ci­ation of the Bar of the City of New York joined on both the Supreme Court briefs; and People for the Amer­ican Way joined on the Supreme Courts merits brief.

The briefs respond to the fact that both the govern­ment’s “wind-up” argu­ment and the Court of Appeals’ immig­ra­tion theory would deny the District Court the author­ity to order release as a remedy for persons who are unlaw­fully detained and entitled to the writ of habeas corpus. The briefs make a number of argu­ments against this result, all of which are united by a theme of “separ­a­tion of powers.” In partic­u­lar, the briefs argue that the power to order release is inher­ent in the writ of habeas corpus and neces­sary for the Suspen­sion Clause to perform its crit­ical func­tion as a check on exec­ut­ive power; and that barring the courts from order­ing release would evis­cer­ate one of the cent­ral attrib­utes of the judi­cial power conferred by Article III: the power to issue final and enforce­able decisions that are not subject to subsequent revi­sion by the polit­ical branches of govern­ment. In their most recent brief, Amici also argue that three appro­pri­ations acts enacted in 2009, which purport to restrict funds to resettle Guantá­namo Bay detain­ees in the United States, should not be inter­preted to apply to the reset­tle­ment of the Uighurs, as doing so would viol­ate the Suspen­sion Clause and the Uighurs’ right to be free from unlaw­ful deten­tion.


Alex Oh, Philip Barber, David Clunie of Paul, Weiss, Rifkind, Whar­ton & Garrison LLP and Sidney Rosdeitcher of the Asso­ci­ation of the Bar of the City of New York are coun­sel on the brief.