U.S. seeks end to Supreme Court Kiyemba v.Obama case
Solicitor General Elana Kagan, on short list for Supreme Court, denies federal courts have any power to free detainees even after successful habeas proceedings
In its merits brief in the Uighurs' case (US v Kiymeba), the DOJ urged the Court to uphold a D.C. Circuit Court ruling denying federal judges have any authority regarding transfer Guantanamo prisoners to the U.S., even where successful
habeas hearings have not resulted in the required release of unlawfully held detainees. The district court below, whose order had been reversed by the DC Circuit, had ordered the release of the detainees into resettlement within the US if necessary, in order to vindicate the outcome of the habeas proceedings.
Alternatively, (announcing a change from prior facts) the merits brief claims “the writ of habeas corpus is effective at Guantanamo Bay” because the US government has, apparently, found countries that will take or likely take all seven Uighur detainees. Consequently, the government claims the case is moot and cert was improvidently granted, and thus the case should now be dismissed.
Specifically, the DOJ said that all seven Chinese Muslim (Uighur) detainees have offers to relocate in countries other than China, so the Court should not even consider ordering their transfer to live in the U.S., as an alternative re-settlement. Two detainees apparently are set to go to Switzerland while five others have an offer from Palau and an unnamed third country, and have declined the Palau offer.
Scotusblog writes:
A dismissal of the case would allow the government to avoid, at least temporarily, a ruling that might keep within the courts some of the power to decide the fate of prisoners at Guantanamo Bay, after they have been cleared for release. The Obama Administration, like the Bush Administration before it, has held the view that only the Executive Branch can decide what happens ultimately to Guantanamo prisoners, even if they have won release orders in federal court or have been cleared for release by the Pentagon. The Kiyemba case poses a direct challenge to that claim, and thus carries at least the potential for a major confrontation between the Supreme Court, the Executive, and even Congress, since the lawmakers have made repeated efforts to bar any transfer of detainees to the U.S. itself and to limit the Executive Branch’s options on re-settlement.
The government has lost — in whole or part — four major cases in the Supreme Court involving Guantanamo prisoners since 2004, and was at risk of having its options perhaps further limited in two other cases. Those two cases, however, never reached a decision in the Court, because the government ended military detention of the two individuals involved, thus making those tests of detention “moot.” In the Kiyemba case, the government is taking a different approach, contending that judicial intervention is no longer needed because the government’s diplomatic efforts have gone far toward achieving re-settlement, after release, of the seven Uighurs still at Guantanamo.
http://www.scotusblog.com/2010/02/u-s-seeks-to-end-kiyemba-case/ The United States merit brief further argued that, if the Court were to rule in the Kiyemba case that any Guantanamo detainee had to be transferred to live inside the U.S., that “would be inconsistent with constitutional principles governing control over the Nation’s borders. As this Court has long affirmed, the power to admit or exclude aliens sf a sovereign prerogative vested in the political Branches, and ‘it is not within the province of any court, unless expressly authorized by law, to review that determination.’”
Although this merits brief cites US Supreme Court precedent and Congressional enactments for its claimed authority to continue to manage detainees (read: deny freedom at will) that only strengthens the following conclusion:
When it comes to detainees, so much for the idea that no person is above the law, i.e., the "Rule of law." The "law" of detainees, as urged by the DOJ, is approximately equal to "there is no law or restraint on the powers of the Executive."
This is why, or how,
habeas is rendered an illusion, because all
habeas does is force the government to declare upon what lawful authority it is detaining someone. That lawful authority might well be summed up as "the law that says we can do what we want to do, any time we want to do it."
The first signature on the merits brief is that of Solicitor General Elana Kagan. And Kagan, though considered by some a "brilliant" constitutional lawyer, is listed as being on the shortlist for Supreme Court nomination?
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