The "Release-Me" Cert. Petitions

By Larkin Reynolds
Thursday, December 9, 2010, 1:21 PM

Yesterday, Lyle Denniston posted a recap of all eight currently pending detainee cert. petitions over at SCOTUSblog. Three of those eight cover what we might call transfer and release issues. Petitioners filed the last of those three yesterday, making it worth looking at the trio a little more closely. The new petition, submitted on behalf of five remaining Uighurs who prevailed in Parhat v. Gates, appeals what is colloquially known as “Kiyemba III.

So that you don’t get what Ben calls “Kiyemba whiplash,” here’s some background:

In 2008, in Munaf v. Geren, a unanimous Supreme Court--the same day as it decided Boumediene--held that a U.S. court could not grant a U.S. citizen injunctive relief to block his imminent transfer from U.S. custody.  "Under circumstances such as" those before the Court, habeas corpus provided the petitioners no relief. The Court went on to write: “The Judiciary is not suited to second-guess . . . determinations that would require federal courts to pass judgment on foreign justice systems and undermine the Government’s ability to speak with one voice in this area." Three of the Justices (Justice Souter, Justice Breyer, and Justice Ginsburg) emphasized that Munaf was limited to its facts, understanding those facts to be that the petitioners (1) had voluntarily traveled to Iraq, (2) were held in the “territory” of (3) an ally of the United States, (4) by U.S. troops (5) during ongoing hostilities that (6) involved U.S. troops.  (7) The government of a foreign sovereign, Iraq, had decided to prosecute them “for crimes committed on its soil," and (8) the State Department had determined that the Iraqi department with authority over the petitioners and the prison and detention facilities have "generally met internationally accepted standards for basic prisoner needs."

The following year, in Kiyemba I, the D.C. Circuit, in an opinion authored by Judge A. Raymond Randolph, held that the 17 Parhat plaintiffs had no right to be released into the United States, even though they could not be sent back to China. The U.S. had (as it does now) a stated policy of not transferring individuals anywhere they might be tortured, and the government did not contest that China was an inappropriate country to which to transfer the detainees. But, the D.C. Circuit held, that did not mean that a court reviewing hearing a habeas petition could require the government to release the petitioner into the United States.

That same year, in Kiyemba II, relying largely on Munaf, a different panel of the D.C. Circuit held that nine detainees were not entitled to 30 days' notice of transfer from Guantanamo Bay as a precondition for government transfer. Judge Douglas Ginsburg wrote for the panel that the Due Process Clause did not require judicial reassessment of the Executive's determination that a detainee is not likely to be tortured by a foreign nation, and thus rejected the idea that a court could enjoin the government’s transfer of a detainee absent prior notice.

At this point, Kiyemba I landed at the Supreme Court, which originally granted a cert. petition to review the D.C. Circuit's decision.  In the Supreme Court's language, the case was worth reviewing because, at the time the petition was filed, no third country was willing to accept the petitioners, so "release into the continental United States [was] the only possible effective remedy." But then things changed: Prior to oral argument, the Supreme Court learned from then-Solicitor General Elena Kagan that each of the petitioners had received at least one resettlement offer in a third-party country. As a consequence, the justices remanded the case to the D.C. Circuit.

This set up Kiyemba III, a per curiam decision which again held that a federal district court had no power to order a detainee’s release into the United States. The Kiyemba III petitioners argued that even though they had received offers of resettlement in countries outside the United States and their country of origin—in Palau and at least one other undisclosed country—“release from the court house is the judicial remedy to which they are entitled." But the D.C. Circuit disagreed; it basically reinstated Kiyemba I.  The court held that, although it had jurisdiction over the petitioners, again the rule established by Munaf forbid the court from looking "behind the determination made by the political branches that the transfer would not result in mistreatment of the detainee at the hands of the foreign government," and that principle controlled in the instant challenge just it had in Munaf and in Kiyemba II:  "[I]t is for the political branches, not the courts, to determine whether a foreign country is appropriate for resettlement." Judge Rogers wrote in her separate opinion something harsher.  Given that the petitioners had received two offers of resettlement that had been determined by the government to be "appropriate" for the petitioners' resettlement, "[t]he habeas court thus [was] no longer confronted with the choice between either releasing petitioners into the continental United States or dooming them to indefinite detention at Guantanamo. . . . Petitioners hold the keys to their release from Guantanamo for resettlement in an 'appropriate' country.”

This brings us to the current petitions:

Monday we briefly touched on the Mohammed and Khadr petitions.  Mohammed, to recap, challenges the court’s power to review the government's diplomatic assurances regarding the transfer of a detainee to his home country following that petitioner’s merits habeas win. Mohammed won his habeas case, and instead of appealing, the government opted to transfer him to Algeria. He asked the district court to enjoin the government from transferring him, and it did so. But the D.C. Circuit vacated that decision.  Essentially, Mohammed presents the issues that arise when the government does not concede that a detainee might be at risk of mistreatment upon transfer (as was true in Kiyemba I). Instead, the government procures assurances from the destination country that the individual will not be mistreated--assurance of which the detainee is skeptical and over which he seeks judicial review.  In Mohammed the petitioner emphasizes the distinctions between his own case and that of the Munaf petitioners.

In Khadr, petitioners advance the same notion—that a detainee is entitled to judicial review if he contests an imminent transfer—and they also seek reversal of the D.C. Circuit’s order vacating a 30-day, pre-transfer notice requirement that Judge Hogan had imposed on the government in 2008.  The main difference in Khadr is that an outcome favorable to petitioners on these issues would affect not just transfers occurring after favorable merits dispositions, but any detainee transfer from Guantanamo Bay.

Both Mohammed and Khadr effectively challenge Kiyemba II and elements of the Supreme Court’s Munaf decision.  The new Kiyemba petition, by contrast, directly attacks Kiyemba III, and it brings a claim that is at once similar to and broader than the 2009 Supreme Court challenge.  The petitioners raise the same issue as in the 2009 case: whether a judge has the power to order a petitioner’s release into the United States.  But the case is also broader because the petitioners no longer argue that a court making such an order would be ordering release into the United States as the only alternative to the continued detention of an individual whose detention has been declared unlawful; instead they argue that release of the prisoner wherever he may be--including the United States--is the only acceptable habeas remedy regardless of what the government would rather do with him.

In Kiyemba III, petitioners argued to the D.C. Circuit that there was insufficient information on record regarding the conditions of transfer to the countries the U.S. had deemed "appropriate."  Though they sought remand for clarification on these issues, the D.C. Circuit believed the outcome of any factfinding regarding the conditions of the post-transfer situation irrelevant, and wrote that “even if petitioners had good reason to reject the offers they would have no right to be released into the United States.” But although the petitioners now frame the question as one about the power of the district court notwithstanding release options, at least one judge on the D.C. Circuit—Judge Thomas Griffith—saw this issue somewhat differently (albeit in Kiyemba II).  Judge Griffith wrote in his dissent from the Kiyemba II panel opinion that transfer to a place where detention would take place essentially by proxy would be problematic, and he indicated that the premise of Boumediene did require notice of transfer and "some opportunity to challenge the government's assurances."

The Supreme Court may still see questions about the scope of habeas relief as relevant; after all, the Justices did grant the 2009 Kiyemba petition in the first place. Maybe they will see the Kiyemba III issue more as Judge Rogers did and believe the problem best resolved not by the Court but by the remaining Uighurs themselves—who should just buck up and move to Palau like six of their former fellow Uighur detainees have already done. Or perhaps they will find in one or more of these petitions an opportunity to delve into some of the interstices of Munaf. Then again, maybe the Justices will simply duck resolution of these questions altogether.

Doc recap:

1. Yesterday's cert. petition, Kiyemba v. Obama.

Question Presented:

Boumediene v. Bush, 553 U.S. 723 (2008), held that aliens imprisoned at Guantánamo Bay enjoy the privilege of habeas corpus, and that “the judicial officer must have adequate authority to . . . issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release.” Id. at 787. Petitioners had been imprisoned for six years when the district judge held that they were non-enemy aliens who could not be transported to their home country of China, and directed that they be brought to his court room for the fashioning of release conditions. The court of appeals stayed and then reversed the order. While the case was pending on appeal, each Petitioner declined the opportunity to volunteer for “temporary relocation” to a remote Pacific island, with which he had no previous tie. The court of appeals held, in Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009) (“Kiyemba I”), and Kiyemba v. Obama, 605 F.3d 1046 (D.C. Cir. 2010) (“Kiyemba III”), that facts regarding release options were immaterial, and that the judicial power was confined to accepting without inspection the executive jailer’s representations that it was attempting to fashion the time, conditions and locus of release through diplomatic means.

Thus the question presented by this case is whether a judicial officer of the United States, having jurisdiction of the habeas corpus petition of an alien transported by the executive to an offshore prison and there held without lawful basis, has any judicial power to direct the prisoner’s release.

2. Khadr v. Obama.

Questions Presented:

1. Whether, in a habeas corpus action brought by an individual held in United States territory, including Guantánamo,
(a) Munaf v. Geren, 553 U.S. 674 (2008), requires, and
(b) Boumediene v. Bush, 553 U.S. 723 (2008), the Suspension Clause, and the Due Process Clause permit, the district court to give conclusive effect to the government’s assertion that the individual is unlikely to be tortured if transferred to a particular country, disabling the individual from challenging his transfer on the ground that he will likely be tortured there, and the court from fashioning an equitable remedy.

2. Whether, in a habeas corpus action brought by an individual held in Guantánamo:

(a) Section 242(a)(4) of the Immigration and Naturalization Act, 8 U.S.C. § 1252(a)(4), bars “judicial review of any cause or claim under the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment,” except in appeals from final orders of deportation.

3. Mohammed v. Obama.

Question Presented:

1. Whether, in a habeas corpus action brought by an individual held in United States territory, including Guantánamo,
(a) Munaf v. Geren, 553 U.S. 674 (2008), requires, and
(b) Boumediene v. Bush, 553 U.S. 723 (2008), the Suspension Clause, and the Due Process Clause permit, the district court to give conclusive effect to the government’s assertion that the individual is unlikely to be tortured if transferred to a particular country, disabling the individual from challenging his transfer on the ground that he will likely be tortured there, and the court from fashioning an equitable remedy.

UPDATE: An earlier version of this post named Jamal Kiyemba as one of the five petitioners in the new Kiyemba certiorari petition, but, in fact, he has been released.  The petitioners are Khalid Ali, Sabir Osman, Abdul Sabour, Abdul Razakah, and Hammad Mehmet.