Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings
Kiyemba v. Obama, 555 F.3d 1022, vacated, 130 S.Ct. 1235 (2010)
In October 2008, a federal district court ordered the release into the United States of several Guantanamo detainees who were no longer considered enemy combatants but who could not be returned to their home country (China) because of the likelihood they would be subjected to torture there, finding that the political branches' plenary authority in the immigration context did not contravene the petitioners' entitlement to an effective remedy to their unauthorized detention.[1] However, the D.C. Circuit panel stayed the district court's order pending appellate review,[2] and subsequently reversed the district court's decision in the case of Kiyemba v. Obama, decided in February 2009. The majority held that although the constitutional writ of habeas enables Guantanamo detainees to challenge the legality of their detention, habeas courts lack authority (absent the enactment of an authorizing statute) to compel the transfer of a non-citizen detainee into the United States, even if that detainee is found to be unlawfully held and the government has been unable to effectuate his release to a foreign county. The Kiyemba panel's decision was primarily based on long-standing jurisprudence in the immigration context which recognizes that the political branches have plenary authority over whether arriving aliens may enter the United States. The majority of the panel also found that Guantanamo detainees were not protected by the Due Process Clause of the Constitution, as they are non-citizens held outside the U.S. and lack significant ties to the country.
As discussed supra, the Supreme Court granted certiorari to review the Kiyemba ruling, but thereafter vacated the appellate court's opinion and remanded the case in light of the fact that several countries have agreed to resettle the petitioners. The D.C. Circuit must now review the ramifications of these new circumstances.
Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir.) ("Kiyemba II"), cert. denied, 2010 WL 1005960, 78 USLW 3302 (U.S. Mar. 22, 2010)
In a second case entitled Kiyemba v. Obama, decided in April 2009, a D.C. Circuit panel considered habeas petitions by detainees who were no longer considered enemy combatants, and who sought to prevent their transfer to any country where they would likely face further detention or torture. The Kiyemba II panel rejected the government's argument that the MCA stripped the court of jurisdiction to hear claims related to the petitioners' proposed transfer. The panel interpreted Boumediene as invalidating the MCA's court-stripping provisions with respect "to all habeas claims brought by Guantanamo detainees, not simply with respect to so-called `core' habeas claims" relating to the legality of the petitioners' detention. However, the panel held that an executive branch determination that a detainee will not be tortured if transferred to a particular country is binding on the court, and a habeas court may not second-guess this assessment. The circuit panel also reversed a district court ruling that required the government to provide 30 days' notice to detainees' counsel before any proposed transfer. As a result of this ruling, the detainees' ability to challenge their proposed transfer from Guantanamo may be quite limited. On March 22, 2010, the Supreme Court denied a petition for writ of certiorari to review the appellate court's ruling.
