Federal Court Hands Terror Detainees & Their Lawyers Another Defeat

The suit filed by 17 Guantanamo Bay detainees seeking release into the United States finally came to an end today, and the result was a decisive victory for the federal government and our national security.  The U.S. Court of Appeals for the District of Columbia dismissed the claims of the detainees, who are ethnic Uighurs, a Turkic Muslim minority in far-west China.  Although military officials determined in 2008 that the Uighurs should no longer be deemed “enemy combatants,” five of them remain in detention at Guantanamo.

The Supreme Court last year agreed to hear the case, Kiyemba v. Obama, and at one point appeared poised to endorse the district court’s determination that the Uighurs were entitled to be released into the United States.  But perhaps because Congress overwhelmingly opposed allowing any Guantanamo detainees to come to the U.S., the Supreme Court in March decided to take a pass.  Instead of ruling on the merits, it vacated the decision of the D.C. Circuit (which had sided with the U.S. government and held that the courts lacked authority to order the Executive Branch to admit aliens into the country) and directed the appeals court to take a fresh look at the case in light of “new developments.”  What had come to light was that five remaining detainees had rejected offers of resettlement in the island nation of Palau and in at least one other nation.

Lawyers for the detainees then sought to have the case returned to the friendly confines of the district court for further factual development of their claims.  The D.C. Circuit rejected that request.  The appeals court explained that the detainees are no longer being “detained” in any constitutionally meaningful sense because they hold the keys to their jail cell – they can leave Guantanamo any time they decide to accept the still-open offer to resettle in Palau, where all agree they would not be persecuted.

But the D.C. Circuit did not simply dismiss the detainees’ claims as moot.  Instead, it reinstated its 2009 decision in favor of the government.  That decision held broadly that courts may never order aliens admitted into the U.S. over the objections of the Executive Branch.  In particular, courts may not order release of a Guantanamo detainee into the U.S. even if the detainee has demonstrated in a habeas proceeding that he is not an “enemy combatant” and that there is no other country to which he can be safely released.  Given the significant number of individuals still held at Guantanamo despite no longer being deemed enemy combatants, the flat-out rejection of right-to-release-into-the-U.S. claims (which are based on a broad reading of the Supreme Court’s 2008 Boumediene decision) is a major defeat for lawyers representing detainees.

So why did the Supreme Court vacate and remand the case, given that the “new developments” (evidence that two of the final detainees had accepted an offer to go to Switzerland and that the offers were still open to the five who rejected resettlement in Palau) made it even less likely that the D.C. Circuit would be sympathetic to the detainees’ habeas claims?  One possible explanation is a compromise between those justices who wanted to dismiss the writ as improvidently granted and those who wanted to find a way to vacate (without possibility of reinstatement) the lower court’s ruling.  The latter group may have hoped that by vacating and remanding, it could delay proceedings sufficiently so that all the detainees would have left Guantanamo before a final appellate decision could be issued – thereby requiring dismissal of the entire proceeding (including vacating all D.C. Circuit decisions on the merits).  The D.C. Circuit’s refusal to send the case back to the district court for an evidentiary hearing (thereby avoiding any delay and permitting the D.C. Circuit to quickly issue another merits-based decision) dashed any such hopes.

Needless to say, we are thrilled by today’s decision.  WLF lawyers participated in the case in the Supreme Court in support of the Obama Administration, filing a brief on behalf of a group of retired generals and admirals.

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