D.C. Appeals Court Rules Against Releasing Guantanamo Detainees to U.S.

Bump and Update: News analysis is beginning to come in. Check back for the ACLU and CCR reaction. I'll post as soon as I receive them.

Breaking....the D.C. Circuit Court of Appeals just issued this opinion (pdf) reversing a trial court judge's order that the Uighur detainees must be released into the United States:

The question is whether, as the district court ruled, petitioners are entitled to an order requiring the government to bring them to the United States and release them here.


....it “is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.” Knauff, 338 U.S. at 543. With respect to these seventeen petitioners, the Executive Branch has determined not to allow them to enter the United States.

The critical question is: what law “expressly authorized” the district court to set aside the decision of the Executive Branch and to order these aliens brought to the United States and released in Washington, D.C.?

Apparently, their answer is none.

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    I also can't recall an opinion (5.00 / 2) (#4)
    by Jeralyn on Wed Feb 18, 2009 at 11:04:33 AM EST
    that mocks another judge's concurring opinion as this one does to Judge Judith Rogers.  They practically call her stupid.

    They do so because they know (5.00 / 2) (#9)
    by Big Tent Democrat on Wed Feb 18, 2009 at 11:12:27 AM EST
    They are full of sh*t.

    They avoid the issue as Judge Rogers states it in her first paragraph:

    In Boumediene v. Bush, 128 S. Ct. 2229 (2008), the Supreme Court held that detainees in the military prison at Guantanamo Bay
    ("Guantanamo") are "entitled to the privilege of habeas corpus to challenge the legality of their detentions," id. at 2262, and that a "habeas court must have the power to order the conditional
    release of an individual unlawfully detained," id. at 2266. Today the court nevertheless appears to conclude that a habeas court lacks authority to order that a non-"enemy combatant" alien be released into the country (as distinct from be admitted under the immigration laws) when the Executive can point to no legal justification for detention and to no foreseeable path of

    It was very catty (none / 0) (#6)
    by andgarden on Wed Feb 18, 2009 at 11:06:15 AM EST
    I don't recall ever seeing an opinion (none / 0) (#41)
    by oculus on Wed Feb 18, 2009 at 12:42:21 PM EST
    in thich the author of the majority opinion bolded the name of another judge to refute the latter's points.  Neither classy nor necessary.  

    Well, she not noted (none / 0) (#54)
    by hairspray on Wed Feb 18, 2009 at 09:58:44 PM EST
    for brilliance as I recall.  Isn't she from Texas?

    Justice souter wrote in concurrence (5.00 / 2) (#11)
    by Big Tent Democrat on Wed Feb 18, 2009 at 11:30:24 AM EST

    in Boumediene:

    It is in fact the very lapse of four years from the time Rasul put everyone on notice that habeas process was available to Guantanamo prisoners, and the lapse of six years since some of these prisoners were captured and incarcerated, that stand at odds with the repeated suggestions of the dissenters that these cases should be seen as a judicial victory in a contest for power between the Court and the political branches. See post, at 2, 3, 28 (ROBERTS, C. J., dissenting); post, at 5, 6, 17, 18, 25 (SCALIA, J., dissenting). The several answers to the charge of triumphalism might start with a basic fact of Anglo-American constitutional history: that the power, first of the Crown and now of the Executive Branch of the United States, is necessarily limited by habeas corpus jurisdiction to enquire into the legality of executive detention. And one could explain that in this Court's exercise of responsibility to preserve habeas corpus something much more significant is involved than pulling and hauling between the judicial and political branches. Instead, though, it is enough to repeat that some of these petitioners have spent six years
    behind bars. After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today's decision is no judicial victory, but an act of perseverance in trying to
    make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation.

    "Something of value." A right with no remedy is of no value at all.

    Here's the kicker J (none / 0) (#1)
    by Big Tent Democrat on Wed Feb 18, 2009 at 10:59:38 AM EST
    Decisions of the Supreme Court and of this court - decisions the district court did
    not acknowledge - hold that the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States.9

    Yet again the DC Circuit "does not acknowledge" the Rasul decision on the status of Guantanamo. We went through this in Hamdan and here they go again. Footnote 9 is the key:

    9 The Guantanamo Naval Base is not part of the sovereign territory of the United States. Congress so determined in the Detainee
    Treatment Act of 2005 § 1005(g), 119 Stat. 2743. The Immigration and Nationality Act, see 8 U.S.C. § 1101(a)(38), also does not treat Guantanamo as part of the United States. See also Vermilya-Brown
    Co. v. Connell, 335 U.S. 377, 380 (1948).

    The DC Circuit seems intent on ignoring the Supreme Court's holdings on the status of Guantanamo. They have some chutzpah accusing the District Court of ignoring rulings from the Supreme Court.

    Responding to your question (5.00 / 1) (#27)
    by scribe on Wed Feb 18, 2009 at 12:14:44 PM EST
    Now considering the entire story here what do you suggest?

    The appropriate-in-all-circumstances answer is:

    "that you treat the issues more seriously, and that you start off by logging off and turning off your computer, then studying some law before turning it on again."

    These are serious issues, and you're trying to make a mockery of them - but succeeding only in mocking yourself.


    Stood out to me too (none / 0) (#2)
    by andgarden on Wed Feb 18, 2009 at 11:02:41 AM EST
    Right, so does this mean (none / 0) (#7)
    by Jeralyn on Wed Feb 18, 2009 at 11:07:56 AM EST
    Obama won't be transferring Gitmo detainees to prisons or facilities in the U.S. when he closes Gitmo because then this ruling wouldn't apply?

    The issue (none / 0) (#21)
    by Big Tent Democrat on Wed Feb 18, 2009 at 12:05:44 PM EST
    of whether the Executive can, in this court's words, ignore statutory immigration criteria, was not decided here.

    The idea here is that this Court might overturn an Obama order to release detainees into the US.  


    No - the Court says (none / 0) (#24)
    by scribe on Wed Feb 18, 2009 at 12:11:45 PM EST
    they do not pass on the question of whether the Executive could ignore the statutes Congress passes regarding whom to admit and under what conditions, to allow these aliens into the United States.

    That's what I wrote (none / 0) (#26)
    by Big Tent Democrat on Wed Feb 18, 2009 at 12:12:49 PM EST
    "whether the Executive can, in this court's words, ignore statutory immigration criteria, was not decided here."

    Boumidiene (none / 0) (#20)
    by Big Tent Democrat on Wed Feb 18, 2009 at 12:04:25 PM EST
    But, I certainly will not engage you at all on this issue.

    This is important to me and I have no stomach for your silliness on this.

    So save your breath with regards to responses to me. I will not engage you at all on this issue.


    Heh (none / 0) (#45)
    by Steve M on Wed Feb 18, 2009 at 12:45:41 PM EST
    Noted Bush apologist Orin Kerr seems to agree with your take on the case, and with some trademark snark to boot.

    This is a good idea: (none / 0) (#50)
    by oculus on Wed Feb 18, 2009 at 01:18:50 PM EST
    (Note to commenters: Based on past experience, threads on topics like this can bring out the worst in commenters. Passions run high, legal analysis tends to be weak, and accusations of hackery run amuck. If that happens here, I'll just delete the comment thread. Feel free not to comment if that possibility bothers you.)

    A commentor (5.00 / 1) (#53)
    by Steve M on Wed Feb 18, 2009 at 02:31:51 PM EST
    has a fine suggestion:

    Why not send them to Taiwan? China would be happy because according to China, Taiwan is China. The Uighers would be happy because really it's not.

    So open the cells (none / 0) (#3)
    by andgarden on Wed Feb 18, 2009 at 11:03:02 AM EST
    and let them roam Gitmo.

    Is this a NIMBY decision? Don't (none / 0) (#5)
    by oculus on Wed Feb 18, 2009 at 11:04:51 AM EST
    bring 'em to D.C.  

    No, it's more of a (5.00 / 1) (#28)
    by scribe on Wed Feb 18, 2009 at 12:16:43 PM EST
    "the law and freedom are so majestic that people are free to sleep and starve in the streets of America" kind of decision.

    I have to say (none / 0) (#8)
    by andgarden on Wed Feb 18, 2009 at 11:09:42 AM EST
    that the idea that exclusion of aliens is purely political makes me feel a little icky.

    OK (none / 0) (#10)
    by squeaky on Wed Feb 18, 2009 at 11:20:07 AM EST
    Pretzel logic BushCo style..

    So it looks like it is up to Obama as executive to let these unfortunate people go and grant them citizenship.

    Let me ask this (none / 0) (#12)
    by Steve M on Wed Feb 18, 2009 at 11:42:45 AM EST
    Let's assume we find an undocumented alien somewhere in the U.S.  We know they're not here legally (don't ask me how we know this, I guess we're like "papers please") but we have no idea where they came from, and they refuse to tell us.

    Presumably we have the right to deport anyone who isn't here legally.  But where do we deport them to, if we don't know their country of origin?  There must be a real-world answer to this dilemma.

    Having an answer to this question might make me a little more clear about how to solve the problem of these unfortunate Uighurs.

    We know where the Uighers are from (none / 0) (#13)
    by Big Tent Democrat on Wed Feb 18, 2009 at 11:47:41 AM EST
    We know that there is a "real threat of persecution" for them there.

    But to me that is not even the issue. An order of release has been issued. The Executive Dept must comply.

    It is as simple as that.


    I'm confused (none / 0) (#15)
    by jbindc on Wed Feb 18, 2009 at 11:59:35 AM EST
    As I haven't been following this story.  What order of released has been issued?  Seems to me Judge Urbina's order was struck down (or placed on hold) with this ruling, or is there another order that needs to be complied with?

    The order of release was NOT struck down (none / 0) (#18)
    by Big Tent Democrat on Wed Feb 18, 2009 at 12:02:48 PM EST
    The order to release IN THE US was struck down.

    Thx (none / 0) (#30)
    by jbindc on Wed Feb 18, 2009 at 12:20:41 PM EST
    I think (none / 0) (#14)
    by andgarden on Wed Feb 18, 2009 at 11:55:40 AM EST
    Zavsyas v. Davis is on point.

    Conceptually yes (none / 0) (#17)
    by Big Tent Democrat on Wed Feb 18, 2009 at 12:01:59 PM EST
    But here tyhe matter is more pointed.

    A constitutionally based grant of a writ of habeas corpus was issued requiring the Executive to free persons held by the Executive.

    I actually agree that the court overreached in ordering release into the US. The order should stick to ordering release.

    And only if the Executive fails to comply can the Court order release in the US.

    The constitutional right of habeas release clearly trump statutory provisions.

    The DC Circuit court decision is simply a joke.


    So what? Send them (none / 0) (#22)
    by andgarden on Wed Feb 18, 2009 at 12:06:47 PM EST
    to the Burger King at Gitmo?

    IT is up to the Executive (none / 0) (#25)
    by Big Tent Democrat on Wed Feb 18, 2009 at 12:11:49 PM EST
    to comply. They have to figure it out.

    The court should not tell them how to figure it out.


    Well, it seems to me an important question (none / 0) (#32)
    by andgarden on Wed Feb 18, 2009 at 12:22:33 PM EST
    A very important one (none / 0) (#35)
    by Big Tent Democrat on Wed Feb 18, 2009 at 12:26:53 PM EST
    But one not to be decided by the courts.

    The court decided its issue - the detainees must be released.

    Now the Executive has the important question, how and where.

    But not IF. The DC Circuit seems to believe the Executive gets to decide the IF.


    The GOP hacks in the DC Circuit (none / 0) (#36)
    by andgarden on Wed Feb 18, 2009 at 12:28:32 PM EST
    want to test the Supreme Court again. I think this is pretty obviously settled law.

    Are they saying (none / 0) (#40)
    by Steve M on Wed Feb 18, 2009 at 12:40:32 PM EST
    that if an alien was never properly admitted in the first place, it's ok to hold them indefinitely under the immigration laws if there's nowhere to send them to?

    Is that Irish bloke still at Ellis Island? (none / 0) (#43)
    by oculus on Wed Feb 18, 2009 at 12:43:33 PM EST
    Opposite I think (none / 0) (#46)
    by andgarden on Wed Feb 18, 2009 at 12:47:29 PM EST
    Don't Understand THe Analogy (none / 0) (#19)
    by squeaky on Wed Feb 18, 2009 at 12:03:03 PM EST
    We know where the Uyghurs are from. They would be jailed and treated as political prisoners if sent back to CHina. I thought we had laws that allowed for people to apply for political asylum here if they were going to be abused if sent back home. Oh yeah, we sent five other Uyghurs to Albania where they rot in prison, so that they would not be tortured in CHina.

    But it seems that the Uyghurs are on the State Dept terrorist list, a hat tip to China.

    Sabin Willett and Susan Baker Manning -- allege in the court documents that their clients' detention was one of several demands the Chinese government solicited in mid-2002 as the United States was seeking global support for toppling Saddam Hussein.

    U.S. officials labeled the East Turkistan Islamic Movement (ETIM) -- a group that includes Uighur separatists who want their own nation in western China -- a terrorist organization in August 2002 after diplomatic discussions with China about Iraq, the lawyers allege.

    WaPo via WiKi


    They have not formally asked for asylum (none / 0) (#23)
    by Big Tent Democrat on Wed Feb 18, 2009 at 12:11:00 PM EST
    But the more important point, at least to me, is that the district court ordered the release of these detainees. To wit, he granted their petititon for a writ of habeas corpus.

    What the DC Circuit seems to be saying is that the Executive's compliance with this order is optional. Outrageous.


    Agree (none / 0) (#31)
    by squeaky on Wed Feb 18, 2009 at 12:21:18 PM EST
    It is outrageous, at the very least because King Obama does not have the same ring as King George.

    I thought we decided King George was over, both a long time ago and quite recently.


    What? "Rot in prison"? (none / 0) (#29)
    by gyrfalcon on Wed Feb 18, 2009 at 12:18:59 PM EST
    Unless they were thrown in jail very recently, like in the last couple of weeks, that is simply false.  The Uighurs in Albania, last I checked, were living in Tirana more or less freely.

    Please provide a link to document the claim that they "rot in prison" in Albania.

    The 17 left behind at Gitmo, however, are in a super-max type isolation facility and rapidly losing their minds.


    Link is Posted Above (none / 0) (#33)
    by squeaky on Wed Feb 18, 2009 at 12:24:58 PM EST
    Although the WaPo article is from aug '05, so it is possible that the 5 Uyghurs we released already have been freed from their Albanian jail cell sometime after the WaPo article was published.

    i gather Raul Castro isn't (none / 0) (#37)
    by oculus on Wed Feb 18, 2009 at 12:33:59 PM EST
    willing to except the 17 at issue here either.

    Is That Even A Possibility? (none / 0) (#42)
    by squeaky on Wed Feb 18, 2009 at 12:42:33 PM EST
    On our part?

    The United States does not have formal diplomatic relations with Cuba and has maintained an embargo which makes it illegal for U.S. corporations to do business with Cuba. This includes travel restrictions. These measures were further strengthened by the implementation by the U.S. of the Helms-Burton Act of 1996 which attempted to punish any foreign companies operating in Cuba, especially those using expropriated US assets. US diplomatic representation in Cuba is handled by the United States Interests Section in Havana, and a similar "Cuban Interests Section" remains in Washington. Both are officially part of the respective embassies of Switzerland.



    You Are Correct (none / 0) (#39)
    by squeaky on Wed Feb 18, 2009 at 12:38:24 PM EST
    From WaPo:

    Earlier this year, those five Uighurs were released to a U.N. compound in Albania, where they remain virtual prisoners.

    And more recently from an interview with Amy Goodman:

    AMY GOODMAN: So let's be clear. Even the men who are in Albania, are they free to move about entirely? And have they ever seen their families?

    SABIN WILLETT: They are free to move about within Albania. They don't have visas to go abroad. And Albania is a desperately poor country. The language is a challenge. The culture is different from anything in their past, although there is a meaningful Muslim minority there, which is significant. So it's difficult economically for these fellows to forge a path ahead, but they're not in any kind of a prison or detention facility, and they've not, as far as I know, been able to see any of their families, because the families haven't been released from China or permitted to travel to Albania.

    Democracy NOW

    Better than Gitmo but they are hardly free.


    It's not an analogy (none / 0) (#44)
    by Steve M on Wed Feb 18, 2009 at 12:44:19 PM EST
    I just wanted to know how we handle, in a different context, the issue of people who don't belong here but can't be sent anywhere.

    Oh (none / 0) (#48)
    by squeaky on Wed Feb 18, 2009 at 12:52:15 PM EST
    My guess:

    Jail first, and then send them to a country that will take them.

    Not so different from the Uyghurs although I would imagine they would be processed much much faster.

    What if the person has no speech, or amnesia?


    The biggest question of all (none / 0) (#51)
    by eric on Wed Feb 18, 2009 at 01:52:35 PM EST
    is why did the Obama Administration follow through with this appeal?  I hear discussion about whether this Court's overturning an executive order, but isn't it the executive that asked this court for this opinion?  I am confused.

    I didn't mean (none / 0) (#52)
    by eric on Wed Feb 18, 2009 at 02:01:22 PM EST
    an executive order.  I meant to say that this Court is deferring to the executive and overturning the lower court order.  Obama wanted this?