Restraining Habeas: Boumediene, Kiyemba, and the Limits of Remedial Authority

By Daniel J. Feith*

Introduction

On April 18, 2011, the Supreme Court denied certiorari in Kiyemba v. Obama,[1] closing—at least for now[2]—the legal path to release for the three remaining Uighur detainees at the Guantanamo Bay Detention Camp.[3] The immediate effect of the denial of certiorari seems clear. The Uighurs may accept an offer of resettlement in another country or remain at Guantanamo, but they may not be released into the United States under judicial[4] or, for that matter, executive[5] authority. Less clear is what the denial means for a question that goes beyond the fate of three Uighurs and to the heart of judicial power: ultimately, what remedial authority do federal habeas courts possess?

The question’s revival has come as something of a surprise to those who thought it was answered in Boumediene v. Bush.[6] Though criticized for lack of clarity,[7] Boumediene stated quite clearly: “We do hold that when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority . . . to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release.”[8] Several months after the Supreme Court issued Boumediene, Judge Ricardo Urbina of the U.S. District Court for the District of Columbia applied Boumediene’s holding to the Uighurs and ordered their release into the United States.[9]

Judge Urbina’s ruling seemed consonant with the facts of the Uighurs’ case and the letter of Boumediene’s holding. The Kiyemba petitioners consisted of seventeen Uighurs captured in Afghanistan and imprisoned at Guantanamo since 2002.[10] The government alleged that the Uighurs were members of an anti-Chinese terrorist group associated with the Taliban and Al Qaeda. Nevertheless, between 2003 and 2008, the government cleared the seventeen Uighurs for release, but had nowhere to release them. The normal measure of returning them home to China was foreclosed by fears that the Chinese would imprison and torture them. As a result, the Uighurs remained in detention as enemy combatants. That policy ceased being tenable, however, after the D.C. Circuit ordered the government to release one of the Uighur detainees, Huzaifa Parhat, because its evidence that he was an enemy combatant “lack[ed] sufficient indicia of . . . reliability.”[11] Since its evidence against the other Uighurs was not significantly different from that against Parhat, the government concluded that it could no longer detain any of the Uighurs as enemy combatants even as it continued to have nowhere to send them. Following Boumediene, the Uighurs’ habeas suits were consolidated for consideration by Judge Urbina, who granted their discharges and, in light of the lack of other options, ordered their release into the United States pending resettlement.[12] He reasoned that ordering their release into the United States was necessary to effect the writ and “preserve the fundamental right of liberty.”[13]

The Uighurs’ odyssey then took another twist. The Government appealed Judge Urbina’s ruling to the D.C. Circuit, and while the appeal was pending, each of the Uighurs received an offer of resettlement from a foreign country, which the government communicated to the D.C. Circuit.[14] The D.C. Circuit reversed Judge Urbina’s decision.[15] His order, it held, trenched upon “the exclusive power of the political branches to decide which aliens may, and which aliens may, enter the United States, and on what terms.”[16] A court may only review a decision by the political branches to exclude an alien if “‘expressly authorized by law.’”[17] Since the district court “cited no statute or treaty authorizing its order,”[18] the D.C. Circuit held that it lacks the authority to review, let alone reverse, the government’s decision to deny the Uighurs admission to the United States.[19] That holding suggested an important corollary: that judicial remedial authority in habeas cases is not absolute.[20] The D.C. Circuit reaffirmed its decision in its entirety one year later,[21] after the Supreme Court vacated and remanded Kiyemba I in light of new factual developments.[22] That ruling leaves the Uighurs only two options: accept an offer of resettlement or remain at Guantanamo.

Several commentators have argued that Kiyemba conflicts with Boumediene’s mandate regarding remedial authority.[23] Professor Jonathan Hafetz has written that Kiyemba “flatly contradicts the Supreme Court’s decision in Boumediene v. Bush.”[24] Judge Lawrence Silberman of the D.C. Circuit has warned that Kiyemba could have the effect of transforming detainee habeas decisions into “virtual advisory opinions.”[25] Nevertheless, following the denial of certiorari, Kiyemba III stands as the law of the D.C. circuit and, thus, as the law governing all Guantanamo litigation.[26]

This article considers the Kiyemba puzzle. Like Hafetz and other commentators, I try to measure the extent of remedial authority in light of Boumediene. This article argues that Boumediene represented a shift away from a “Modern” understanding of habeas, which is based on the individual rights of the prisoner, and back towards a “Historical” understanding, which is based on the jailer’s authority. By situating Boumediene in this historical tradition, I show that Kiyemba’s focus on institutional prerogatives and separation of powers concerns is faithful to Boumediene and its animating principles. Furthermore, this interpretation of Boumediene explains how, on the same day it asserted judicial power in Boumediene, it could also issue a deferential opinion in Munaf v. Geren.[27] Boumediene, in short, contained the means of its own restraint.

I.    Kiyemba, Boumediene, and Two Understandings of Habeas

A.    The Modern Understanding

Kiyemba is such a troubling decision in large part because it jars with what I call the “Modern Understanding” of the writ of habeas corpus, according to which habeas is a vehicle for vindicating a litany of individual rights. The Modern Understanding is rooted in the federal Habeas Corpus Act of 1867,[28] which authorized federal courts to grant writs of habeas corpus “in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States.”[29] The Act did more than simply expand federal jurisdiction. Whereas the Judiciary Act of 1789 directed habeas courts to “inquir[e] into the cause of commitment,”[30] the 1867 Act reoriented habeas proceedings towards constitutional violations.[31]

The proliferation of rights under the Fifth and Fourteenth Amendment’s due process guarantees, [32] in particular, has cemented the Modern Understanding of habeas.[33] Justice Brennan summed up the deep linkage between habeas and due process in the public mind when he wrote, albeit inaccurately,[34] that the “[v]indication of due process is precisely [habeas’s] historic office.”[35] The coupling of habeas and due process has led several scholars and judges to reason that if Boumediene extended habeas to Guantanamo, it must have extended at least minimal due process rights as well.[36] Nevertheless, Kiyemba I held that “the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States.”[37]

Despite its prominence, the Modern Understanding is conspicuously absent from the Boumediene majority’s opinion. Chief Justice Roberts’ dissent highlights the degree to which the majority eschewed the Modern Understanding. The dissent criticized the Court for not “bothering to say what due process rights the detainees possess” and for not “explaining how the [Military Commissions Act] fails to vindicate those rights.”[38] Such criticism perfectly reflects a Modern conception of habeas corpus. To paraphrase Justice Brennan, if the writ’s office is vindicating due process rights, then the central inquiry is what due process rights the detainees enjoy. After all, under Brennan’s view, one cannot know whether the detainee “review proceeding falls short of being a constitutionally adequate substitute,”[39] as the majority held, without first “knowing what rights either habeas or the [Detainee Treatment Act] is supposed to protect,”[40] as the dissent insisted.

Justice Souter’s concurrence also reads as a rebuke to the majority for ignoring the individual rights at stake. Souter wrote that in extending the Suspension Clause to Guantanamo, “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 prisoners have spent six years behind bars.”[41] Without rejecting the majority’s theory, Souter suggested it was not enough and risked ignoring what Justice Souter believed is an essential purpose of habeas review: to “mean something of value both to prisoners and to the Nation.”[42]

B.    The Historical Understanding

In contrast with the Modern Understanding, what I call the “Historical Understanding” sees habeas as a means of policing jailers’ authority, not vindicating individuals’ rights. These may seem like two sides of the same coin, except that, as Professor Goldstein has noted, “habeas predates rights.”[43] Habeas transformed into the “Great writ of liberty” in the hands of justices of King’s Bench, England’s highest common law court, intent on policing the royal prerogative[44]—and, in the process, consolidating judicial power.[45] Although one finds hints of this trend in the late-fifteenth and sixteenth centuries, the transformation began, in earnest, in the early seventeenth century—when the notion of individual rights that are legally enforceable against the state was only beginning to take shape.[46] Habeas’s focus on authority was—and continues to be—reflected in the writ’s structure. The writ was addressed not to the prisoner who petitioned for it but to the prisoner’s jailer, which is to say, to a franchise-holder. On receipt of the writ, the jailer was required to provide a return setting forth the grounds for imprisonment and the date and cause of arrest;[47] in other words, the jailer had to show that he had exercised his franchise lawfully. This procedure placed the jailer’s authority at the center of the habeas inquiry and made King’s Bench the arbiter of the jailer’s actions.[48]

King’s Bench’s effort to consolidate power that had been diffused among a congeries of courts and administrators[49] reflected a broader phenomenon: English habeas developed outside any framework of separated powers. Parliament, for example, was both a legislative and a judicial body. The House of Lords served as England’s highest court, and even Parliament’s legislative function was understood in judicial terms as the making of prospective judgments. Indeed, it was Parliament’s status as “the highest court in the land” that gave it authority to regulate King’s Bench through such legislation as the Habeas Corpus Act of 1679.[50] King’s Bench, likewise, laid claim to broad common law authority to expand its jurisdiction and develop available remedies.[51] In the habeas context, the embrace by King’s Bench of an equitable approach was evident in such cases as that of Ralph Brooke, a deadbeat husband imprisoned by an ecclesiastical court for defying its order to live with and support his wife. King’s Bench not only ordered his release but also directed Brooke to pay his wife alimony.[52] Finally, overlapping personnel among King’s Bench, the Privy Council, and Parliament corresponded to the overlapping functions of these bodies.[53]

This history required the Framers to make certain modifications to habeas to adapt it to our constitutional order. If habeas was understood by the Framers as one of the “greater securities to liberty” provided for by the Constitution,[54] the separation of powers was understood as the greatest.[55] Like any grant of power, habeas would need to respect the division of authority established by the Constitution; American courts could not invoke royal prerogative as an unlimited font of power. Chief Justice Marshall recognized this limitation on the judicial power in Ex Parte Bollman.[56] Rejecting Bollman’s claim that “the power of issuing writs of habeas corpus. . . is one of those inherent powers, bestowed by the law upon every superior court of record, as incidental to its nature, for the protection of the citizen,”[57] Marshall—hardly an opponent of judicial assertiveness[58]—nevertheless drew a distinction between the English and American judiciaries. He held, “Courts which originate in the common law possess a jurisdiction which must be regulated by their common law…; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction.”[59] Thus, Marshall concluded, “the power to award the writ [of habeas corpus] by any of the courts of the United States, must be given by written law”[60]—which, he further held, it had been.

Ex Parte Bollman represents a modest conception of the judicial power as limited by the authority of coordinate branches of government. Although aspects of Bollman are much criticized,[61] and St. Cyr[62] and Boumediene cast doubt on Marshall’s view that the Suspension Clause does not independently confer habeas jurisdiction on courts,[63] even Bollman’s critics do not dispute Marshall’s rejection of an inherent judicial power to issue the writ. Instead, they simply challenge his view that the Constitution, through the Suspension Clause, does not grant that power. Thus, Bollman highlights that even as the Court was expanding the use of habeas corpus, it was doing so in a way that respected the boundaries between its authority and that of its coordinate branches.

The Boumediene majority embraced the Historical Understanding of habeas. Without reaching the thorny question of whether detainees have substantive rights independent of habeas,[64] the Court focused exclusively on the relationship between the Suspension Clause and separation of powers in holding that Guantanamo detainees must be able to challenge their detention. Justice Kennedy’s opinion began by reviewing the history of habeas corpus. Ultimately, it “decline[d] . . . to infer too much”[65] about the scope of habeas from that survey, but it did draw a conclusion from it about the purpose of habeas corpus and the Suspension Clause. Kennedy wrote that the writ enables the Judiciary “to maintain the delicate balance of governance that is the surest safeguard of liberty,” while the Suspension Clause ensures that “except during periods of formal suspension,” the writ will be available to the courts.[66] In other words, Justice Kennedy’s opinion understood the Suspension Clause primarily as protecting the separation of powers in our constitutional structure.

That understanding, with its focus on power structures rather than rights, guided the Boumediene Court as it turned to analyzing whether the Suspension Clause applies to territories outside formal American sovereignty. The Court rejected the Government’s de jure sovereignty-based test for two related reasons. First, it feared how that test would affect the political branches’ power vis-à-vis the Constitution, explaining that by manipulating sovereignty, the political branches would gain “the power to switch the Constitution on or off.”[67] Second, the Court feared how that test would affect the political branches’ power vis-à-vis the Judiciary. Power to determine where the Constitution applies “would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say ‘what the law is.’”[68] These broader concerns about maintaining constitutional limits on the political branches’ power and protecting the Judiciary’s role in enforcing those limits converged in the Court’s conclusion that “the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.”[69] It is important to note how distinct this formulation is from one that views habeas primarily through the lens of rights. Rights limit how all three branches of government exercise their authority. The Boumediene Court, however, saw habeas not in terms of protecting individuals against the abuses of all three branches but in terms of restraining the authority of the two political branches—potentially wherever they operated. This is precisely the Historical Understanding of habeas, filtered through constitutional separation of powers.[70]

II. The Doctrinal Coherence of Boumediene and Kiyemba

Judged according to the Modern Understanding of habeas, Kiyemba is a troubling decision. Its facts and law challenge the Modern Understanding’s core principles. The Modern Understanding marries habeas with due process rights; Kiyemba decouples them. The Modern Understanding sees vindicating those rights as the writ’s core purpose; the Kiyemba petitioners remain confined three years after the government conceded it lacked authority to detain them.[71] Whereas the Modern Understanding conceives of habeas corpus as a remedy to unlawful imprisonment, Kiyemba limits the remedial authority of habeas courts even at the price of the Uighurs’ freedom. These tensions, moreover, seem to place Kiyemba in conflict with Boumediene’s holding that the judicial power to issue habeas must include authority “to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release.”[72] In this Section, I argue that contrary to initial appearances, Kiyemba and Boumediene are doctrinally coherent.[73] Whatever its normative appeal, the Modern Understanding misapprehends Boumediene, which emphasized, above all, that the purpose of habeas is to preserve the separation of powers. The remainder of this Section demonstrates how Kiyemba is faithful to that imperative.

Part of the difficulty in determining whether Kiyemba’s view of limited judicial remedial authority comports with Boumediene is that the Boumediene Court itself hedged in stating what remedial authority is constitutionally required. The Court noted that habeas is, “above all, an adaptable remedy”[74] and that “release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted.”[75] On the other hand, the Court categorically declared that “the habeas court must have the power to order the conditional release of an individual unlawfully detained.”[76] It even described this imperative as a holding.[77] Can Kiyemba be squared with this holding?

Boumediene’s holding regarding remedial authority ought to be contextualized within its larger discussion of the purpose of habeas corpus. As described in Section I.B, Boumediene understood habeas corpus primarily as an instrument for preserving the “delicate balance of governance . . . ”—which is to say, the separation of powers—“that is itself the surest safeguard of liberty.”[78] Notwithstanding the common charge that Boumediene is a “sweeping assertion of judicial supremacy,”[79] the majority understood its assertion of authority in defensive terms. It viewed the government’s claim that formal sovereignty determines the Suspension Clause’s application as an overreach of the political branches’ proper authority at the expense of the Court’s power.[80] Its rejection of that position aimed to restore constitutional balance.

Thus, Boumediene’s understanding of habeas is—pace Professor Calabresi—as a common law for the age of the Constitution. That is, Boumediene understood habeas according to pre-1789 English common law, but with the modifications necessary to make habeas work within a constitutional framework of separated powers. The judicial power, in particular, changed from the common law to the Constitution. Article III replaced the king’s prerogative as the source of courts’ authority.[81] Instead of having the run of the road, as in England, the American judiciary must stay in its lane.

Boumediene emphasized this obligation only vis-à-vis the political branches, but that is because in that instance, the Court thought the political branches were trenching on judicial authority, not vice-versa. It would be absurd to read Boumediene, which invoked the separation of powers more than ten times,[82] to exempt the judiciary from the obligation to respect the inter-branch boundaries of power.[83] Therefore, insofar as remedial authority in habeas cases is a subset of judicial power, that obligation should inform our understanding of Boumediene’s command that habeas courts “must have the power to order the conditional release of an individual unlawfully detained.” In other words, remedial authority—like judicial power generally—must respect the coordinate branches’ prerogatives.

This point is especially relevant to Kiyemba. Professor Stephen Vladeck has suggested that if the D.C. Circuit had “tak[en] seriously the flexibility of the writ as a means of promoting equity,” it would have found it within its authority “to order the government to release the prisoner within a specified, finite period of time, and to sanction the government if it failed to do so.”[84] Such arguments about the equitable nature of the Great Writ, however, beg the question of the constitutional limits on the authority of a habeas court to fashion an equitable remedy. The D.C. Circuit faced precisely that question in Kiyemba. Ordering the detainees’ release into the United States, thereby fulfilling Boumediene’s letter, would encroach on the “exclusive province of the political branches”[85] to control entry at our borders, thereby violating Boumediene’s logic. By holding that it lacked the power to issue such an order, the Kiyemba Court reconciled Boumediene’s letter to its logic.

Kiyemba’s recognition that the separation of powers limits habeas courts’ remedial authority also accords with the Supreme Court’s ruling on Munaf v. Geren,[86] a case decided the same day as Boumediene. Munaf involved two American citizens arrested and detained by the U.S. military in Iraq who filed habeas petitions to prevent their transfer to Iraqi authorities to stand trial for alleged crimes, citing the risk of torture.[87] In a unanimous opinion, the Court held that the petitioners are entitled to habeas but denied them relief. Rejecting petitioners’ fear of torture as grounds for relief, the Court “recognized that it is for the political branches, not the Judiciary, to assess practices in foreign countries and to determine national policy in light of those circumstances.”[88] Munaf, in other words, recognized that even the authority of habeas courts has limits. Reading Boumediene together with Munaf reinforces the validity of Kiyemba’s conclusion that its remedial authority must respect the prerogatives of its coordinate branches of government.[89]

Conclusion

This article has argued that, contrary to the claim that Kiyemba and Boumediene present conflicting views of habeas courts’ remedial authority, the two cases are actually consistent. Boumediene departed from the modern, prisoner-focused, rights-based understanding of habeas and embraced an understanding focused on the legality of the jailer’s authority. Rooted in the English common law, this Historical Understanding views habeas in the American constitutional context primarily as an instrument for preserving the separation of powers. This understanding underpinned the Boumediene Court’s assertion that the Suspension Clause reaches Guantanamo—a ruling widely derided as an assertion of judicial supremacy. Yet this understanding also compelled the Kiyemba Court’s recognition of limits to its remedial authority—a holding widely derided as an act of judicial abdication. There is a further irony to Boumediene’s Historical Understanding: the impoverishment of the very writ it celebrated. By placing the political branches’ authority at the center of the habeas inquiry, the Historical Understanding cuts detainees and their rights out of the analysis. It is now possible, as in Kiyemba, to fulfill the writ’s core purpose—assessing the lawfulness of detention—without fashioning a remedy. From a systemic perspective, this may be fine. From the detainees’ perspective, it is devastating. Kiyemba identifies troubling limits to the Great Writ’s remedial power, but they are limits of the Supreme Court’s own making.