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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

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