an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Unraveling of Boumediene: Habeas Still a Right without a Remedy
The Supreme Court today denied the certiorari petition in Kiyemba v. Obama, the long-running battle involving Uighur prisoners detained at Guantanamo Bay. Four Justices (Breyer, Kennedy, Ginsburg, and Sotomayor) issued a separate statement, however, leaving the door open to future challenges by the five remaining Uighurs (or others) seeking release from unlawful detention at Guantanamo. (Kagan did not take part in the consideration of the petition, presumably based on her prior involvement in the case as Solicitor General).
The issue raised by the Uighur litigation is central: does a federal habeas judge have the authority to order the release of a prisoner unlawfully detained at Guantanamo Bay? The Court previously granted certiorari in Kiyemba to decide this question—where an order of release to the United States was the only available remedy. The problem was that after certiorari was granted, but before argument, the Obama administration found at least one country--Palau--willing to accept the Uighur petitioners. Several Uighurs took the offer; others did not. The Court vacated the D.C. Circuit’s opinion denying relief and remanded for reconsideration in light of these new facts. The D.C. Circuit essentially reinstated its earlier opinion, which denied that federal judges have any power to order the release of a Guantanamo detainee into the United States, even if that was the only alternative to continued unlawful detention. Judge Rogers concurred, reasoning that while a habeas judge has the power to order the release of a Guantanamo prisoner into the United States, that power should not have been exercised in Kiyemba in light of the offer of repatriation elsewhere. Today’s separate statement largely endorses Rogers’ approach. Although Palau’s offer is no longer on the table, the four Justices noted the government’s offer to renew discussions with Palau as well as its continuing effort to find other options for resettlement. (Presumably, if none of those options materialize, the Uighurs can again seek Supreme Court review).
The D.C. Circuit panel’s approach in Kiyemba flatly contradicts the Supreme Court’s decision in Boumediene v. Bush, which said that the right of habeas corpus protected by the Suspension Clause must include the power “to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release.” Today’s separate statement, like the Court’s prior grant of certiorari in Kiyemba, acknowledges as much. The problem is that no case presents the factual posture the Court considers appropriate to affirm that right.
On one level, Kiyemba highlights a broader problem in the “enemy combatant” habeas litigation: the government’s ability to maintain control of detention decisions, and avoid adverse results, by altering factual patterns at the eleventh hour to evade Supreme Court review. As it stands, district judges have no authority to order the release of a detainee to the United States even when it is the only remedy. Moreover, they lack the authority to influence the repatriation process, including by placing the type of pressure district judges routinely place on litigants to resolve disputes. So, while the question of who may be detained is a judicial one, the question of who actually leaves Guantanamo is still within the control of the executive, nearly three years after Boumediene.
More broadly, Kiyemba reflects the D.C. Circuit’s continued defiance of the Supreme Court. Last week’s concurring opinion by Judge Silberman in Esmail v. Obama provided the most audacious example yet. Silberman described the Guantanamo habeas litigation as a “charade prompted by the Supreme Court’s defiant—if only theoretical—assertion of judicial supremacy.” (Randolph, another leader of the D.C. Circuit’s conservative wing, has lambasted Boumediene as a “mess”). Meanwhile, the Circuit continues to reverse district court habeas grants and affirm district court denials of habeas, virtually without exception.
The Supreme Court, however, has declined to review any D.C. Circuit decision since Boumediene. To be sure, one can say that none of the appeals have presented a cert-worthy issue or good vehicle for resolving important underlying questions, such as the legal category of who may be detained and the standard of proof necessary to justify indefinite imprisonment. But, even if that were true, the problem remains that the Supreme Court’s decision in Boumediene—widely regarded as a landmark separation of powers ruling—continues to be implemented by a Circuit that includes several judges who believe it was wrongly decided and who are determined to gut it. Posted
by Jonathan Hafetz [link]