Kiyemba v. Obama (Amicus Brief)

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.