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.

See Kiyemba v. Bush: "Let’s Be Very Careful Here Before We Taint People Without Evidence", Circuit Court of Appeals Precludes Uighurs' Release into U.S., "Unchartered Territory": A Remedy of Release into the U.S. for GITMO Detainees. See also Deborah Pearlstein, Opinio Juris, Constitutional Right, no Gitmo Remedy.

Saleh v. Titan: Political Divisions in Determining Accountability of Private Military Contractors

On February 10, 2009, the Court of Appeals for the District of Columbia Circuit heard oral argument in Saleh v. Titan, a case in which 250 Iraqi plaintiffs are attempting to hold accountable CACI International, Incorporated and L-3 Communications (formerly Titan Corporation) for allegedly committing torture, as well as other state law tort violations, in their provision of interrogation and translation services at Abu Ghraib and other prisons in Iraq. The case raises the familiar issue of accountability of private military contractors (PMCs) in the so-called war on terror. (For a good summary of the factual and procedural history of the case, see the following link from the Center for Constitutional Rights.) The panel, consisting of Judges Brett M. Kavanaugh (appointed by George W. Bush), Merrick B. Garland (appointed by Bill Clinton), and Laurence H. Silberman (appointed by Ronald Reagan), was unsurprisingly divided on ideological grounds.

On November 6, 2007, District Judge James Robertson issued a Memorandum Order granting Titan's motion for summary judgment, thereby dismissing the case against Titan, but denying CACI's motion for summary judgment and ordering a jury trial. Judge Robertson analyzed the level of control exercised by the U.S. government over the PMCs to determine whether the claims were preempted by the federal contractor defense. He concluded, "The critical differences between the ways that contract translators and contract interrogators were managed and supervised lead to different outcomes. Because the facts on the ground show that Titan linguists performed their duties under the exclusive operational control of the military, the remaining state law claims against Titan are preempted and must be dismissed. Because a reasonable trier of fact could conclude that CACI retained significant authority to manage its employees, however, I am unable to conclude at this summary judgment stage that the federal interest underlying the combatant activities exception requires the preemption of state tort claims against CACI. This does not mean that CACI may not successfully prove this affirmative defense at trial, but the task of sorting through the disputed facts regarding the military’s command and control of CACI's employees will be for the jury."

At argument before the Circuit Court, the judges questioned heavily both parties on the combatant activities exception under the Federal Tort Claims Act (FTCA), which divests district court jurisdiction over civil actions for "[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." Judge Silberman emphasized that the exception applies to claims "arising out of" combatant activities of the U.S. military and not "claims against" the U.S. military, and therefore could include combatant activities engaged in by non-U.S. military personnel. Judge Garland countered that the FTCA is a liability statute and therefore the exceptions should be read narrowly. Judge Kavanaugh noted congressional silence about whether federal preemption applies in this context but stated that war time activity likely falls within the scope of implied preemption.

Ultimately, the decision whether to preempt liability based on the federal contractor defense depends on how the judges interpret congressional silence on the issue. Judges Silberman and Kavanaugh appear to subscribe to the idea that congressional silence supports the conclusion that preemption applies, especially in light of the Executive's primacy in war-related matters. Judge Garland, on the other hand, appears to support the conclusion that if Congress had intended to preclude liability for non-U.S. military personnel, it would have done so explicitly. As commonly transpires on the Court of Appeals for the D.C. Circuit, the outcome will likely be driven by each judge's political persuasions.