Wednesday, February 18, 2009

Uighurs Denied Remedy of Release into U.S.

On February 18, 2009, the Court of Appeals for the District of Columbia Circuit issued its opinion in Kiyemba v. Obama, a case addressing whether 17 Uighurs currently held in detention at Guantanamo Bay have the right to a remedy of release into the United States. Senior Judge A. Raymond Randolph (appointed by George H.W. Bush) authored the majority opinion, concluding that the Uighurs have no remedy of release into the United States because the political branches control exclusively the entry of aliens into the country. Judge Judith W. Rogers (appointed by Bill Clinton) concurred in the judgment, noting that the Executive has not yet determined if the Uighurs can be detained lawfully pursuant to U.S. immigration laws, but criticizing sharply the conclusion that the United States can indefinitely detain the Uighurs without a lawful basis for that detention.

Judge Randolph relied on the "ancient principle" that "a nation-state has the inherent right to exclude or admit foreigners and to prescribe applicable terms and conditions for their exclusion or admission." Judge Randolph denied that the Uighurs possess any constitutional right to a habeas remedy based on their lack of citizenship and detention at Guantanamo, which Judge Randolph concluded is not part of the sovereign territory of the United States. In addition, Judge Randolph rebuked the district court's reliance on the principle that where there is a right (in this case a right to habeas), there is a remedy, emphasizing that doctrines such as sovereign immunity and political question preclude remedies in many instances. Ultimately, Judge Randolph concluded that the courts have no power to order the remedy sought by the Uighurs.

Judge Randolph focused the second half of his opinion on responding to Judge Rogers' concurrence. He called her statements "confused and confusing" and emphasized that whether or not the United States can continue to detain the Uighurs under immigration law is irrelevant because the Uighurs have not applied for admission under immigration law. Judge Randolph stated that the courts need express authorization by law in order to review a determination by the political branches to exclude an alien from entry into the United States. In addition, Judge Randolph concluded that the Supreme Court's decision in Boumediene v. Bush extends constitutional rights to aliens only with regard to the Suspension Clause.

The majority opinion and Judge Rogers' concurrence differ in which party bears the burden. Judge Randolph requires statutory authority for the remedy sought - namely, release into the United States, and Judge Rogers requires a showing of unlawful detention, thereby warranting a remedy. As noted in Judge Rogers' concurrence, "the majority has recast the traditional inquiry of a habeas court from whether the Executive has shown that the detention of the petitioners is lawful to whether petitioners can show that the habeas court is 'expressly authorized' to order aliens brought into the United States."

Whereas Judge Randolph emphasized that the Uighurs are seeking "an extraordinary remedy," Judge Rogers emphasized that the Uighurs face potentially indefinite detention. What counsels in favor of permitting such an extraordinary remedy is that the U.S. government created this dilemma. Unlike an individual who is seeking entry into the United States, the Uighurs were forcibly captured and detained. What is most appalling is that the Uighurs are not - and have never been - enemy combatants, yet they face indefinite detention at Guantanamo. Although release into the United States may constitute an extraordinary remedy, the Uighurs are entitled to a remedy, and release into the United States appears to be the only remedy available in light of the potential torture they face if they return to China and reluctance of any third-party country to accept the Uighurs, as recognized explicitly by the U.S. government. Any denial of the only remedy available to the Uighurs renders the Supreme Court's decision in Boumediene meaningless and is fundamentally unfair.

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