« Happy Hump Day | Main | Give Me an "A!" »
February 18, 2009

BREAKING: D.C. Court of Appeals Rules Against Releasing Gitmo Uighurs into the U.S.

The opinion was just released. I'm reading through it now (PDF) and will update in a moment.

Okay: A summary of what's going on, cribbed in part from my earlier post on this case:

The military decided in 2003 that ten Guantanamo Bay detainees are not enemy combatants in the War on Terror, but held them for five years nevertheless. Five more were cleared in 2005, but held nevertheless. Another was cleared in 2006, but held. And another this year. The military won’t repatriate the detainees because it believes there is a very good chance they will be tortured if they are returned to their country of origin. Now a U.S. district court has ordered the military to release all seventeen into the United States.

That decision of the district court was appealed and today's ruling overturns it because the district court has no authority to grant admission to the United States. Here is the key part:

[I]t “is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.” Knauff, 338 U.S. at 543. With respect to these seventeen petitioners, the Executive Branch has determined not to allowthem to enter the United States. The critical question is: what law “expressly authorized” the district court to set aside the decision of the Executive Branch and to order these aliens brought to the United States and released in Washington, D.C.?

The answer is that no law makes such an express authorization. The district court pointed to Boumediene v. Bush, but that case only gives federal courts habeas jurisdiction of Guantanamo Bay detainees. It does not purport to allow the courts to fashion novel remedies for unlawful detention. The point is that the military must release them, but nothing gives the district courts authority to order that release be in the United States.

At first blush, there are a couple interesting things going on here.

First, there is no quibbling over the definition of "enemy combatant" because it's not really relevant to the holding. The other War on Terror cases have been self-destructing because the definition of enemy combatant was changed so often. Here, it doesn't matter because the executive simply admits that they have no authority under the AUMF or any other statute to hold these guys prisoner. The only question here is whether the district court could order them admitted into the United States.

Second, the majority judges issue a strong rejoinder to the concurring judge, Judith Rogers. Generally, majority opinions will address the concerns and arguments of the concurring and dissenting judges. In this case, it's not just a polite discussion of Judge Rogers' objection. This is a point-by-point judicial bitchslap. Examples:

No matter how often or in what form Judge Rogers repeats this undisputed proposition – and repeat it she does – it will not move us any closer to resolving this case. The question here is not whether petitioners should be released, but where.

My emphasis. Someone was a little punchy about this. Also, on framing the issue, Rogers appears to dispute the use of the "expressly authorized" standard. The majority replies:

Judge Rogers fails to mention that the “expressly authorized” quotation in our opinion is taken from a Supreme Court opinion in a habeas case. We repeat with some additional emphasis: it “is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.” Knauff, 338 U.S. at 543.

That bold is in the original. Jesus. Didn't Nostradamus say something about when judges are bolding text at each other? I'm taking cover over here.

Third, I'm fairly certain this is the first War on Terror case to have Obama's name on it, as the citation for this case is now Kiyemba v. Obama.

digg this
posted by Gabriel Malor at 12:07 PM

| Access Comments

Recent Comments
Lump: "Gonna be needin a whole lotta butt hole lube.... ..."

Mr. Scott (Formerly GWS): "I like the ukelele, but, sadly, cannot play one. ..."

Last Days of the Republic.: "They forgot to put the Northam exemption next to b ..."

All Hail Eris, She-Wolf of the 'Ettes 'Ettes: "Diversity and Inclusion training? Me likee! ..."

Jane D'oh: "Thanks, JEF. ..."

alexthechick - Boobs and hysteria: "Columbus Day is racist per the Army, good to know. ..."

Skip: "I was in USAF 78-82 and honestly didn't see any ra ..."

spypeach: "wow, there was a time I was positive that the mili ..."

West: "Can't even spell "covert". How the hell are mental ..."

Wyatt Earp: "Everything stinks. ..."

Duke Lowell : "Fucking Army. ..."

Old Blue: "*Addressing the troll*Tell ya what f*cknuts. Show ..."

Recent Entries

Polls! Polls! Polls!
Frequently Asked Questions
The (Almost) Complete Paul Anka Integrity Kick
Top Top Tens
Greatest Hitjobs

The Ace of Spades HQ Sex-for-Money Skankathon
A D&D Guide to the Democratic Candidates
Margaret Cho: Just Not Funny
More Margaret Cho Abuse
Margaret Cho: Still Not Funny
Iraqi Prisoner Claims He Was Raped... By Woman
Wonkette Announces "Morning Zoo" Format
John Kerry's "Plan" Causes Surrender of Moqtada al-Sadr's Militia
World Muslim Leaders Apologize for Nick Berg's Beheading
Michael Moore Goes on Lunchtime Manhattan Death-Spree
Milestone: Oliver Willis Posts 400th "Fake News Article" Referencing Britney Spears
Liberal Economists Rue a "New Decade of Greed"
Artificial Insouciance: Maureen Dowd's Word Processor Revolts Against Her Numbing Imbecility
Intelligence Officials Eye Blogs for Tips
They Done Found Us Out, Cletus: Intrepid Internet Detective Figures Out Our Master Plan
Shock: Josh Marshall Almost Mentions Sarin Discovery in Iraq
Leather-Clad Biker Freaks Terrorize Australian Town
When Clinton Was President, Torture Was Cool
What Wonkette Means When She Explains What Tina Brown Means
Wonkette's Stand-Up Act
Wankette HQ Gay-Rumors Du Jour
Here's What's Bugging Me: Goose and Slider
My Own Micah Wright Style Confession of Dishonesty
Outraged "Conservatives" React to the FMA
An On-Line Impression of Dennis Miller Having Sex with a Kodiak Bear
The Story the Rightwing Media Refuses to Report!
Our Lunch with David "Glengarry Glen Ross" Mamet
The House of Love: Paul Krugman
A Michael Moore Mystery (TM)
The Dowd-O-Matic!
Liberal Consistency and Other Myths
Kepler's Laws of Liberal Media Bias
John Kerry-- The Splunge! Candidate
"Divisive" Politics & "Attacks on Patriotism" (very long)
The Donkey ("The Raven" parody)
Powered by
Movable Type 2.64