On November 24, 2008, at 9:30 a.m., the Court of Appeals of the District of Columbia Circuit heard arguments in Kiyemba v. Bush. The panel, composed of Judges Judith W. Rogers (appointed by Bill Clinton), Karen LeCraft Henderson (appointed by George H.W. Bush), and A. Raymond Randolph (appointed by George W. Bush), questioned counsel for the Uighurs and the Solicitor General in a public hearing, followed by closed proceedings to address classified issues. The argument exceeded the 15 minutes allotted to each side, ending at approximately 10:30 a.m. The argument follows an order issued by the Circuit Court (see Circuit Court of Appeals Precludes Uighurs Release into U.S.) granting the government’s request to stay the release into the United States of 17 Uighurs held at Guantánamo, as directed by District Court Judge Ricardo M. Urbina. Although a Combatant Status Review Tribunal had ruled that the men were “enemy combatants,” the D.C. Circuit concluded that the government’s information that formed the basis for its conclusion was unreliable.
Judge Rogers, who dissented from the Circuit Court’s order granting the government’s stay, questioned the Solicitor General persistently concerning the basis for the government's authority to continue to detain the 17 Uighurs. The Solicitor General, representing the President of the United States, argued that the Executive has this authority on two grounds: (1) its authority under the Authorization for Use of Military Force to wind-up operations at Guantánamo and (2) its inherent constitutional authority to detain aliens before their entry into the United States – an authority the Solicitor General argued is not subject to review. Judge Rogers questioned the Solicitor General regarding its second ground for Executive authority, noting that the case cited in support of that argument, Shaughnessy v. Mezei, relates to continued detention of aliens under the immigration laws of the United States. In addition, counsel for the Uighurs argued that Mezei involved an individual attempting voluntarily to enter the United States, whereas the U.S. government detained the Uighurs against their will.
Judge Randolph, author of Circuit Court’s decisions in Al Odah v. United States, Hamdan v. Rumsfeld, and Boumediene v. Bush – all reversed by the Supreme Court – stressed that the Supreme Court’s decision in Boumediene v. Bush, although stating that GITMO detainees have habeas corpus rights, does not give detainees other constitutional or statutory rights. Emphasizing that the Circuit Court has held that these individuals have no due process rights, Judge Randolph concluded that the court would have to go en banc to rule otherwise. Judge Randolph also stated that the government has already satisfied any requirement for “conditional release,” as mandated in Boumediene, because the Uighurs are merely awaiting relocation. Judge Randolph noted that under U.S. immigration laws, terrorists include any individuals who train to commit terrorist acts in any country. Judge Rogers, noting that the government’s brief refers repeatedly to the Uighurs “dangerousness,” chastised the Solicitor General for stating that at least some of these 17 men have trained with terrorists and pose a threat to U.S. national security. She stated forcefully, “Let’s be very careful here before we taint people without evidence.”
The government argues that the appropriate remedy here is to release the 17 Uighurs to a third country. As noted by the Uighurs' lawyers, however, the government’s continued efforts to relocate the Uighurs have been unsuccessful. The U.S. government has detained these individuals for seven years, and it is questionable whether their future detention would be anything but indefinite. Although the Solicitor General recognized that the Uighurs could seek a remedy under the immigration laws of the United States, he also conceded that the immigration laws of the United States do not apply to individuals held at Guantánamo. In addition, it is difficult to believe that the U.S. government would provide any discretionary relief, such as granting refugee status or parole, where it is the government that has argued consistently that these individuals are dangerous terrorists, despite the Circuit Court’s holding that the government had insufficient evidence to deem them enemy combatants. The government’s circular logic leads to the conclusion that although these individuals have a right to habeas they have no right to a meaningful remedy.
Judge Rogers and Judge Randolph questioned both parties heavily during the argument, at times raising their voices and talking over the parties and each other. Judge Henderson, notably silent throughout most of the argument, sat between Judges Rogers and Randolph, imposing a physical and symbolic barrier between their apparent disagreements over the disposition of Kiyemba v. Bush. The Circuit Court’s ruling on the government’s request for a stay provides evidence regarding each judge’s initial leaning regarding the merits of the case. Therefore, Judge Rogers will likely dissent from an opinion in which Judges Randolph and Henderson will likely hold that the 17 Uighurs held at Guantánamo – who are not enemy combatants – can be held indefinitely without judicial review. If the Supreme Court chooses to hear this case, however, it is possible that the Court will reverse such a decision, as it has reversed Judge Randolph’s prior decisions regarding the rights of GITMO detainees.