Wednesday, October 22, 2008

Circuit Court of Appeals Precludes Uighurs' Release into U.S.

On October 20, 2008, the Court of Appeals for the District of Columbia Circuit issued an order granting the government’s request for a stay in Kiyemba v. Bush. The stay applies to the district court’s order directing appellees release into the United States. (See “Unchartered Territory”: A Remedy of Release into the U.S. for GITMO Detainees). The order calls for an expedited appeal schedule, and the Court of Appeals will hear oral argument on November 24, 2008, at 9:30 a.m.

The panel is composed of Judges Karen LeCraft Henderson (appointed by George H.W. Bush), A. Raymond Randolph (appointed by George W. Bush), and Judith W. Rogers (appointed by Bill Clinton). Judge Randolph wrote the Court of Appeal’s decisions in Al Odah v. United States, Hamdan v. Rumsfeld, and Boumediene v. Bush. In these decisions, the Court of Appeals denied the habeas rights of GITMO detainees and upheld the validity of military commissions to try GITMO detainees. Judge Rogers dissented in the Court of Appeal’s decision in Boumediene.  The Supreme Court has disagreed with each of these decisions.

Judge Rogers filed a dissent from the order granting the government’s stay in Kiyemba, emphasizing that the government cannot continue to detain appellees and that their release poses no threat. She noted that the Court of Appeals had held that the government failed to present evidence supporting that one of the appellees was an “enemy combatant,” and the government then advised the district court that the 16 other Uighur detainees were not “enemy combatants.” She also noted that “[t]he [district] court’s release order was based on findings that are either uncontested by the government or clearly supported by the record.” In addition, the government presented no evidence that appellees pose a threat to the national security of the United States or the safety of any individual.

She then addressed the four factors considered in deciding whether to grant a stay: (1) the likelihood that the government will succeed on the merits, (2) the potential for irreparable harm to the government posed by the Uighurs release, (3) the Uighurs substantial interest in release, and (4) the public interest. With regard to the government’s likelihood of success on the merits, Judge Rogers concluded that the government’s argument that the political branches have “plenary powers over immigration” is “both inadequate and untrue.” The government has attempted to extend a unitary executive theory to the sphere of immigration and is attempting to use immigration statutes to bar release of GITMO detainees. In addition, Judge Rogers rejected the government’s argument that the Uighurs have no constitutional rights because they are outside the territory of the United States. This argument is disingenuous because the Uighurs were forcibly captured and taken to Guantánamo, where they were held for seven years, despite the government’s failure to ever show that they are “enemy combatants.”

Judge Rogers then balanced the potential harm to the government and the Uighurs. She stated that the harm of unlawful imprisonment faced by the Uighurs outweighs the potential “cloud over their status” the government would face if it did not maintain exclusive authority over admission of aliens and the winding up of detention policies at GITMO. With little discussion, Judge Rogers noted that the Uighurs have a substantial interest in release and emphasized the public's interest in maintenance of the writ of habeas corpus as “an indispensable mechanism for monitoring the separation of powers.”

This order provides a glimpse of how the Court of Appeals judges are likely to analyze the case on appeal. Because one of the factors considered in determining whether to grant a stay is likelihood of success on the merits, we know (at least pre filing of the parties’ briefs) how each judge feels about the merits of the case. Judge Rogers’ dissent notes the many inconsistencies in the government’s argument. The government cannot invoke immigration laws to preclude entry for individuals who were forcibly detained without any showing that they are “enemy combatants” and claim that they pose a national security and safety threat.

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