The Guantanamo detainee case Kiyemba v. Obama is a potentially landmark separation-of-powers case headed for the US Supreme Court in March 2010, with major policy issues and the futures of 13 detainees at stake. In this two-part story, I examine the case’s background and some questions it raises. This is a follow-up to Part I: Jamal Kiyemba’s long journey home.

Part II: New borders

Judge A. Raymond Randolph wrote for the majority:

Seventeen Chinese citizens currently held at Guantanamo Bay Naval Base, Cuba, brought petitions for writs of habeas corpus. … The question is whether [they] are entitled to an order requiring the [US] government to bring them to the United States and release them here.

This opening paragraph of the decision by the DC Circuit Court of Appeals in February of 2009 introduced a document that dramatically altered the fate of those seventeen men. The men had previously been ordered by a lower court to be freed inside the United States, but the Executive branch appealed, saying the lower court had no such authority. Subsequently, the question that Judge Randolph introduced above was answered: no. No, the seventeen men will not be released into the United States, and unlike Jamal Kiyemba, they can not go home because they fear persecution by the Chinese government. There are thirteen of them now; four were released to Bermuda in June. They wait, still at Guantanamo Bay, for the slow wheels of American justice to make one final revolution as their case heads to the Supreme Court.

Probably about the time Judge Randolph was earning his law degree, Adel Noori was born in a far Western Chinese province called Xinjiang. Xinjiang, which literally translated means “new border,” is home to most of the Muslim Uighur ethnic population, including Noori’s wife and daughter. It is not home to Adel Noori however, because he is one of the men asking to be freed from Guantanamo Bay. Judge Randolph continues:

Sometime before September 11, 2001, petitioners left China and traveled to the Tora Bora mountains in Afghanistan, where they settled in a camp with other Uighurs. … Petitioners fled to Pakistan when U.S. aerial strikes destroyed the Tora Bora camp. … Eventually they were turned over to the U.S. Military, transferred to Guantanamo Bay and detained as “enemy combatants.

Noori went to Kabul, Afghanistan before 9/11. In all likelihood, he was fleeing political persecution in China where, as an outspoken voice of political movements that run contrary to Chinese government policy, he was (and still is) wanted for “political crimes.” So Noori fled, and found himself in Afghanistan when the bombs started falling. As Judge Randolph explains, he then went to Pakistan seeking safety. And so, although their circumstances were dramatically different, Adel Noori and Jamal Kiyemba found themselves in Pakistan for the same reason. Their adopted country of Afghanistan was under attack as the United States sought retribution for an act of terrorism that neither men had anything to do with. Kiyemba and Noori became scapegoats. Like Kiyemba, Noori was handed over to US authorities in exchange for a monetary reward ($7000, according to his lawyer). And like Kiyemba, he was sent to Guantanamo.

Noori and his compatriots didn’t speak the same language as Kiyemba, and it is likely they never even met him. For five years, though, they shared a home, and waited for the bizarre and opaque organs of the US military, executive, and judicial systems to process them. After several years, it was clear to the US government that none of these men were threats to the United States, and that they ought to be released. Lawsuits filed on their behalf sought relief as early as 2005, and because of the similarity of their predicaments, they were consolidated under the Kiyemba umbrella. Thus, when Jamal Kiyemba was released in 2006 (to a country where he was not in danger of persecution), his namesake – Kiyemba v. Bush (later Kiyemba v. Obama) continued its progression through the legal system.

But the Uighur men were stuck. The United States, trying to use 9/11 to justify a war in Iraq, was trading on Americans’ fears. Continued rhetoric about the “dangerous” men at Guantanamo was a political roadblock to releasing even the ones that were known to be innocent. Other countries, not unreasonably, rejected invitations to accept the men, arguing that if they were too dangerous for the US, we had no business trying to export them elsewhere. China, accused of using 9/11 to unjustly label the Uighur independence movement a terrorist organization, would have certainly imprisoned the men if they were released there. Their only true home, Afghanistan, remained a war zone. So they waited.

Then, in 2008, they were freed. The DC District Court, seeing the impossible situation that the United States had created for the men, granted their petition for habeas corpus and directed their release into the United States. An earlier case, Boumediene v. Bush had already set the precedent for detainee habeas rights, and the court seemed to be acting in accordance with that decision. It was the closest thing to old-fashioned Constitutional justice since the war had begun. To many observers, it was a bit of fitting irony that the United States had created for itself a mechanism for importing people who never had any intention of immigration. As the Brennan Center for Justice noted:

They find themselves in their predicament not because they were seeking admission to the United States but because they were forcibly seized and brought to Guantánamo where they have been unlawfully detained for seven years. They are not seeking – nor did they ever seek – to immigrate; they are simply seeking release from their unlawful detention. And they seek that release into the United States because all other options are foreclosed to them.

Unfortunately that justice was short-lived, which brings us back to Judge Randolph. Speaking for the three-judge appellate panel, Randolph explained that no matter how unfair the United States may have been to these prisoners, the Writ of Habeas Corpus is not “compensatory in nature” and that such an unprecedented step as to compel non-citizens to be released onto US soil is entirely inappropriate. The Executive branch, he said, and not the courts, have sole discretion as to who gets to immigrate to the United States. He concluded, “The government has represented that it is continuing diplomatic attempts to find an appropriate country willing to admit petitioners, and we have no reason to doubt that it is doing so. Nor do we have the power to require anything more.”

Adel Noori has seen his share of new borders, but for now those borders remain the narrow boundaries of the Guantanamo prison. Meanwhile, the US government is exploring where the borders of its Executive and Judicial branch powers really are.

Sources for Part II

Background information, non-judicial quotation sources, and biographies of the Uighur detainees

1. “Profiles of Guantanamo Detainees in Need of Safe Haven.” Center for Constitutional Rights. Nov. 2008. 31 Oct. 2009. http://ccrjustice.org/learn-more/reports/profiles-guantanamo-detainees-need-safe-haven.
2. “Adel Noori.” Center for Constitutional Rights. Nov. 2008. 31 Oct. 2009. http://ccrjustice.org/files/Adel%20Noori%20-%202pages_0.pdf.
3. Rosdeitcher, Sidney. “Kiyemba v. Obama: A Mockery of the Rule of Law.” Brennan Center for Justice. 19 Feb. 2009. New York University School of Law. 31 Oct. 2009. http://www.brennancenter.org/blog/archives/kiyemba_v_obama_a_mockery_of_the_rule_of_law/.
4. “China ‘crushing Muslim Uighurs’.” BBC News 12 Apr. 2005. 31 Oct. 2009. http://news.bbc.co.uk/2/hi/asia-pacific/4435135.stm.
5. Miles, Donna. “Bush: Guantanamo Detainees Receiving Humane Treatment.” American Forces Press Service 20 Jun 2005. United States Department of Defense. 31 Oct. 2009. http://www.defenselink.mil/news/newsarticle.aspx?id=16359.

Legal documents

1. DC District Court’s habeas decision. See In re Guantanamo Bay Detainee Litig., 581 F. Supp. 2d 33 (D.D.C. 2008). 30 Oct. 2009. http://www.scotusblog.com/wp/wp-content/uploads/2009/06/hogan-on-gtmo-returns-6-1-09.pdf.
2. DC Circuit Court of Appeals decision reversing the District Court’s habeas ruling: Kiyemba v. Obama. 555 F.3d 1022 (D.C. Cir. 2009). 30 Oct. 2009. http://pacer.cadc.uscourts.gov/docs/common/opinions/200902/08-5424-1165428.pdf.
3. Petition for Certiorari in the United States Supreme Court: Kiyemba v. Obama. No. 08-1234. 30 Oct. 2009. http://www.scotusblog.com/wp/wp-content/uploads/2009/04/kiyemba-petition-final-4-6-09.pdf.
4. Boumediene v. Bush. 553 U.S. ___ (2008). 30 Oct. 2009. http://www.supremecourtus.gov/opinions/07pdf/06-1195.pdf.