By Jonathan Abrams, NSJ Staff Editor –
On March 23rd, the Supreme Court is scheduled to hear arguments concerning the power of a federal judge to compel the Executive to admit detainees into the United States. But a two sentence order issued by the Court on Friday signaled that new developments may result in the Court never reaching the merits.
The case, Kieymba v. Obama, involves a group of Uighurs, Chinese Muslims who were captured by bounty hunters in the early days of the Afghanistan war. The Bush administration declared the group enemy combatants and they were sent to Guantanamo. Eventually, the administration determined they were harmless, but ran into problems trying to release them. President Bush did not want to let them into the United States, nor did he want to send them to China, where they had legitimate fears of torture. Other countries did not want to accept the Uighurs out of fears of angering the Chinese. Thus, they were kept in a legal limbo: found to be harmless but remaining detained.
The Uighurs filed writs of habeas corpus to which the Bush administration, after decisions in other cases, eventually dropped its opposition. The question became the remedy. Traditionally, the remedy for habeas corpus is release from confinement. But release to where? A D.C. Circuit District Court judge ruled that the Executive must release the Uighurs into the United States. The administration appealed and won in the Court of Appeals for the D.C. Circuit. That court held that the decision over whom to admit into this country is exclusively one for the political branches; the courts have no say in the matter. The Supreme Court accepted to hear the case in October.
Earlier this month, the Obama administration got a break: Switzerland agreed to accept the last two Uighurs. The Solicitor General wrote to the Court claiming that these developments “eliminate the factual premise” of the case, namely that “the prisoners have no possibility of leaving Guantanamo Bay except by release into the United States,” and therefore the case should be dismissed.
The Court has ordered supplemental briefing on what effect these developments have. If the Court determines that it cannot hear the case, there are two routes it could take. First, it could decide to dismiss the case as improvidently granted (“DIG” in court parlance). This would leave the Court of Appeals decision intact, thus giving the Executive a powerful piece of precedent to use in future disputes. However, there is another avenue. The Court may reach the merits and decide that the case has become moot, which would have the effect of vacating all lower court decisions. Any future president wishing to argue for judicial deference on the issue of detainee release would have to start again from a blank slate.
The supplemental briefs are due this Friday, February 19th.
UPDATE: On Monday, March 1st, the Supreme Court issued an unsigned order sending the case back to the D.C. circuit court to decide “what further proceedings in that court or in the District Court are necessary and appropriate for the full and final disposition of the case in light of . . . new developments.”
Photo courtesy of the Associated Press, via the Huffington Post