Yesterday, the D.C. Circuit Court of Appeals in Kiyemba v. Obama overturned a lower court's order directing the release into the United States of seventeen Uighurs (Muslims from Western China) detained at Guantánamo Bay Naval Base for almost seven years. The decision makes a mockery of the rule of law, flies in the face of Supreme Court precedent, and contradicts principles of detainee treatment espoused by President Obama. President Obama should promptly direct the release of petitioners into the United States, subject to appropriate conditions of parole, or arrange for one of our European allies to accept them.
A majority of the 3-judge panel of the appeals court held that the courts are powerless to order the Uighurs' release, despite having determined in habeas corpus proceedings-proceedings designed to test the legality of detention-that the government has no valid basis to detain them. As the concurring opinion of Judge Rogers points out, the government "neither claimed petitioners were 'enemy combatants' or otherwise dangerous, nor charged them with a crime, nor pointed to any other statutory grounds for detention, nor presented reliable evidence that they posed a threat to U.S. interests."
The district court had ordered the detainees' release into the United States because they could not be returned to China, where they faced the prospect of torture or execution, and no other country was willing to receive them. Release into the United States was therefore the only alternative to their continued indefinite detention without lawful basis. The court of appeals, however, held that such release was beyond the court's power to order, because the political branches alone control "immigration."
The court of appeals did not suggest that any harm could result from allowing the Uighurs into the country. To the contrary, the government concedes that the Uighurs pose no threat to the security of the U.S. Moreover, the vibrant and close-knit Uighur communities here in the United States have offered to receive petitioners, provide them housing and employment opportunities, and vouch for them.
The majority's decision thus condemns these seventeen harmless individuals to continued and indefinite detention. In doing so, it produces a result that is "not faithful" (as Judge Rogers' concurring opinion notes) to the Supreme Court's landmark decision last June in Boumediene v. Bush. The Supreme Court there recognized that habeas embodies the right to "freedom from arbitrary and unlawful restraint," and held that this right-which it deemed "chief" among "freedom's first principles"-applied to detainees at Guantánamo. The Court emphasized that "a habeas court must have the power to order the conditional release of a person unlawfully detained." The D.C. Circuit majority's opinion repudiates these binding principles and renders petitioners' constitutional right to be free from arbitrary and unlawful detention a nullity. As the Brennan Center argued in an amicus brief submitted on behalf of the Uighur petitioners in this case, "the essence of habeas is the court's power to order release if no lawful basis for the continued denial of liberty exists."
In a weak effort to harmonize its reasoning with the Supreme Court's Boumediene decision, the majority attempts to distinguish the constitutional right to habeas, which the Supreme Court emphatically held was applicable to Guantánamo detainees, from the constitutional due process right to be free from unlawful and arbitrary detention, which the court of appeals claimed was inapplicable to Guantánamo detainees. This is meaningless wordplay. The two rights are synonymous, as the language of Boumediene makes clear.
The majority erred yet again in reasoning from principles of immigration law that-because the power to admit aliens into the United States is within the exclusive control of the political branches-the Executive's objection to the petitioners' release into the United States trumps the power of the habeas court to order such a release, even though it is the only practical alternative to continued unlawful detention.
But as even the majority acknowledged, petitioners are not applicants in the immigration process. They find themselves in their predicament not because they were seeking admission to the United States but because they were forcibly seized and brought to Guantánamo where they have been unlawfully detained for seven years. They are not seeking-nor did they ever seek-to immigrate; they are simply seeking release from their unlawful detention. And they seek that release into the United States because all other options are foreclosed to them. Upholding the Executive's power to object to their release, under the circumstances, is tantamount to giving the Executive the power to detain people without any legal authority to do so. Such a conclusion is directly in conflict with the Framers intent in guaranteeing the right to habeas, described in Federalist No. 84 as an antidote to "the practice of arbitrary imprisonments, . . . [one of] the favorite and most formidable instruments of tyranny.".
Throughout the painful saga of Guantánamo, the Supreme Court has repeatedly rejected the Executive's most extreme claims-that executive detention decisions could not be reviewed by the courts, and that the detainees had no constitutional rights. The full Court of Appeals or the Supreme Court should agree to hear an appeal from yesterday's decision and reaffirm, yet again, that the President lacks the power to detain individuals without lawful basis.
Even better, the President himself could do, of his own accord, what the lower court demanded of his predecessor months ago-permit the petitioners to settle among the supportive communities of their fellow Uighurs here in the U.S., under appropriate conditions of parole. Or he could use diplomatic channels to urge an ally to accept them. Such an act would give life to the words he uttered in his inaugural address: "Our founding fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man. . . . Those ideals still light the world and we will not give them up for expedience's sake." And it is the least that President Obama can offer the Uighurs in exchange for the years of their lives that have already been taken from them without justification.