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President's Column

A Right Without a Remedy

Patricia M. Hynes, President

The Association has long been concerned about the delicate balance between national security and civil liberties. We were in the forefront of efforts to maintain that balance during the “Red Scare” following World War I and the post-World War II McCarthy era. So it was hardly surprising that more than a dozen committees have readily engaged the many national security/civil liberties issues that arose in the aftermath of the September 11th attacks.

We continue that work today, as many of the issues that faced the Bush Administration are now confronting the Obama Administration. Our work is led by the Task Force on National Security and the Rule of Law, skillfully chaired by Sidney Rosdeitcher. The Task Force’s latest effort is an amicus brief filed in the U.S. Supreme Court on behalf of the Association and several other organizations in the case of Kiyemba v. Obama. Mr. Kiyemba and the other individuals in his habeas petition are Uighurs, a Chinese ethnic group at serious odds with the Chinese government, who were picked up in Pakistan and Afghanistan, turned over to American forces and sent to Guantanamo.

Our government learned early on that the Uighurs were not terrorist threats to the U.S. However, they faced possible persecution if they were released to their native China. Both the Bush and the Obama Administrations have looked for places to send them, but several remain detained in Guantanamo. These Uighurs and many other detainees have filed habeas petitions in federal court seeking release. They were given this right by the Supreme Court in Boumediene v. Bush (2008).

A lower court granted the Kiyemba habeas petition and set a hearing to consider conditions for release in the U.S. Yet, while no one is contesting that these petitioners are entitled to be released, the government opposed the order to release the men in the U.S., and the D.C. Circuit Court of Appeals ruled for the government, deciding that though the lower court ruled in favor of the detainees it has no power to order their release into the U.S., but rather must accept the Executive Branch’s representations that it is continuing diplomatic attempts to resettle the Uighurs. Where, as in the case of some of the Uighurs, such diplomatic efforts at resettlement abroad have not yet been successful, the detainees remain imprisoned at Guantanamo despite the courts' favorable rulings on their habeas petitions establishing their right to release.

The Association supported the appeal of this ruling to the Supreme Court, first in a successful petition for certiorari and then on the merits, arguing that the D.C. Circuit decision effectively leaves the Petitioner without a remedy, and “eviscerates the judicial power conferred by Article III (of the U.S. Constitution) by leaving the Petitioner’s unquestioned right to release entirely to the discretion of the executive branch and foreign governments.” This flies in the face of the principle, established more than 200 years ago, “that the ‘judicial power’ conferred by Article III is the power to issue enforceable remedies not subject to revision, except on review by appellate courts.”

The brief addressed the several Congressional measures purporting to restrict the use of federal funds to settle detainees in the U.S. The brief argues that these measures, if interpreted to prevent a court from releasing Petitioner into the U.S., are an unconstitutional violation of the Suspension Clause of the Constitution, which provides that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The brief urged the Court to interpret the Congressional provisions narrowly, so as to permit the court-ordered release of the detainees, and offered alternative ways of so interpreting the statute.

In filing this brief, we continue to support the authority of the Judicial Branch as a co-equal branch of government, with the power not only to resolve disputes that are rightfully before it but also to grant a remedy. Many of us take this linkage for granted in our practices and our lives. However, even, or particularly, when the decisions become difficult, this essential principle of the rule of law must be upheld.