No.

-----------------
IN THE SUPREME COURT
OF THE UNITED STATES
Y ASIN MUHAMMED BASARDH,
Petitioner,
v.
GEORGE W. BUSH, et al..
Respondent.
On Petition For Writ Of Certiorari
Before Judgment To
The United States Court Of Appeals
For The District of Columbia
PETITION FOR WRIT OF CERTIORARI
BEFORE JUDGMENT
Steven T. Wax
Federal Public Defender
Stephen R. Sady*
Chief Deputy Federal Public Defender
*CounselofRecord
101 SW Main Street, Suite 1700
Portland, Oregon 97204
(503) 326-2123
Attorneys for Petitioner
QUESTION PRESENTED
Whether a federal court exercising its habeas jurisdiction, as confirmed by
Boumediene v. Bush, 128 S.Ct. 2229 (2008), has the power to order the release of
prisoners held by the Executive for seven years, where the Executive detention is
indefinite and without authorization in law, and release into the continental United
States is the only possible effective remedy_
TABLE OF CONTENTS
Page
Table of Authorities ............................................................................................................. .ii
1. Preliminary Statement. ................................................................................................ 2
2. Opinion Below ........................................................................................................... 3
3. Jurisdictional Statement. ................................................................................................. 4
4. Constitutional And Statutory Provisions ................................................................... .4
5. Statement Of The Case ............................................................................................... 5
6. Reasons For Granting A Writ Of Certiorari .............................................................. 8
7. Conclusion .................................................................................................................. 9
Appendix A
Appendix B
AppendixC
Basardh v. Obama, No. 05-889, Memorandum Opinion,_ F.Supp.2d
_,2009 WL 1033193 (D.D.C. Apr. 15,2009).
Kiyemba v. Obama, No. 08-1234, Petition For Writ Of Certiorari.
Kiyemba v. Obama, No. 08-1234,Amicus Curiae Brief Of The Federal
Public Defender For The District Of Oregon In Support Of Petitioners
1
TABLE OF AUTHORITIES
Page
Federal Cases
Basardh v. Gates, 545 F.3d 1068 (D.C. Cir. 2008) .............................................................. 6
Basardh v. Obama, _ F.Supp.2d _,2009 WL 1033193 (D.D.C. Apr. 15, 2009) ........ 2
Bisrnullah v. Gates, 551 F.3d 1068 (D.C.Cir. 2009) ............................................................. 6
Boumediene v. Bush, 128 S.Ct. 2229 (2008) ...................................................................... 6, 7
Clinton v. City o/New York, 524 U.S. 417 (1998) ............................................................... 3
Hamdi v. Rums/eld, 542 U.S. 507 (2004) .............................................................................. 7
Hamdan v. Rums/eld, 548 U.S. 557 (2006) ........................................................................... 6
Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009) .................................................. passim
Mistretta v. United States, 488 U.S. 361 (1988) ................................................................... 3
Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008)
Ex parte Quirin, 317 U.S. 1 (1942) ........................................................................................ 3
Rasul v. Bush, 542 U.S. 466 (2004) ....................................................................................... 6
Statutes
Detainee Treatment Act of2005, Pub.L.No. 109-148, 119 Stat. 2680 (2005) ..................... 6
Military Commissions Act of2006, Pub.L.No. 109-366, 120 Stat. 2600 (2006) ................. 6
28 U.S.C. 2241 ..................................................................................................................... 6
11
No. ________________ _
IN THE
SUPREME COURT OF THE UNITED STATES
Y ASIN MUHAMMED BASARDH,
v.
GEORGE W. BUSH, et al.
Petitioner,
Respondent.
Petition For Writ Of Certiorari
Before Judgment To
The United States Court Of Appeals
For The District of Columbia
The petitioner, Yasin Muhammed Basardh, through his attorneys, Federal Public
Defender Steven T. Wax and Chief Deputy Federal Public Defender Stephen R. Sady,
respectfully requests that a writ of certiorari before judgment issue to review the decision of
the United States District Court for the District of Columbia entered on April 15, 2009,
granting his petition for writ of habeas corpus but holding that, based on the decision of the
United States Court of Appeals for the District of Columbia in Kiyemba v. Obama, 555 F.3d
1
1022 (D.C. Cir. 2009), the court could not issue an order of conditional release. Basardh v.
Obama,_ F.Supp.2d_, 2009 WL 1033193 (D.D.C. Apr. 15,2009) (Appendix A).
1. Preliminary Statement
This case is related to the petition for a writ of certiorari pending before the Court in
Kiyemba v. Obama, 08-1234 (Appendix B). Counsel for Mr. Basardh filed an amicus curiae
brief in support of the grant of certiorari in that case based on Mr. Basardh' s interest as a
Guantanamo prisoner adversely affected by the Court of Appeals decision in Kiyemba
(Appendix C). Despite the District Court's grant of Mr. Basardh's habeas petition, the
remedy could not include an order of conditional release based on Kiyemba (Appendix A at
11).
This petition is filed in response to the Solicitor General's June 11,2009, letter to this
Court in Kiyemba. The Solicitor General advised the Court that a number of petitioners in
the consolidated Kiyemba case had recently been removed from the prison at the United
States Naval Station at Guantanamo Bay, and that the government was continuing efforts to
resettle all petitioners. In light of the potential that the government will seek to have the
petition for writ of certiorari in Kiyemba dismissed, and the District Court's denial of
conditional release for Mr. Basardh based solely on the decision of the Court of Appeals
Kiyemba, Mr. Basardh submits this petition for certiorari before judgment.
While in the normal course certiorari is only sought after a judgment is entered by the
Court of Appeals, this Court has the authority to grant certiorari before the judgment. This
2
Court has done so on a number of occasions when the questions raised are of public
importance and when warranted by the need for speedy resolution. See Mistretta v. United
States, 488 U.S. 361, 371 (1988) (granting certiorari after decision in the District Court
"because of the 'imperative public importance' of the issue ... and because of the disarray
among the federal district courts."); Ex parte Quirin, 317 U.S. 1,6-7 (1942); see also Clinton
v. City of New York, 524 U.S. 417, 454-55 (1998) (Scalia, J., dissenting) ("In light of the
public importance of the issues involved, and the little sense it would make for the
Government to pursue its appeal against one appellee in this Court and against the others in
the Court of Appeals, the entire case, in my view, qualifies for certiorari review before
judgment.").
2. Opinions Below
In open court on March 31, 2009, and in a written opinion filed April 15, 2009, the
Honorable Ellen S. Huvelle granted Mr. Basardh's petition for a writ of habeas corpus, but
held that the decision in Kiyemba v. Obama, 555 F.3d 1022 (D.C.Cir. 2009), precluded her
from ordering his conditional release: "The court, however, must deny petitioner's request
that he be released or transported to a safe haven in light of Kiyemba v. Obarna, 555 F.3d at
1024." Appendix A at 11. The government filed a notice of appeal on May 29,2009, and
the petitioner cross-appealed on the Kiyemba issue on June 2, 2009.
3
3. Jurisdictional Statement
This Court'sjurisdiction is properly invoked under 28 U.S.c. 1254(1) and28 U.S.c.
2101(e).
4. Constitutional And Statutory Provisions
U.S. CONST. art. I, 9, cl. 2, states:
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.
U.S. CONST. art. III, 1, states, in pertinent part:
The judicial Power ofthe United States, shall be vested in one supreme Court,
and in such inferior Courts as the Congress may from time to time ordain and
establish.
U.S. CONST. art. III, 2, cl. 1, states, in pertinent part:
The judicial Power shall extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the United States, and Treaties made, or which
shall be made, under their Authority; ... [and] to Controversies to which the
United States shall be a Party ....
U.S. CONST. amend. V, provides, in pertinent part:
No person shall be ... deprived of life, liberty, or property, without due
process of law ....
28 U.S.C. 2241 states, in pertinent part:
(a) Writs of habeas corpus may be granted by the Supreme Court, any
justice thereof, the district courts and any circuit judge within their
respective jurisdictions.
(c) The writ of habeas corpus shall not extend to a prisoner unless-
4
(1) He is in custody under or by color of the authority of the United States
or is committed for trial before some court thereof; or
(3) He is in custody in violation of the Constitution or laws or treaties of
the United States ....
28 U.S.c. 2243 states, in pertinent part:
The [habeas] court shall summarily hear and determine the facts, and dispose
of the matter as law and justice require.
The Authorization for the Use of Military Force, 2(a), 115 Stat. 224, note following
50 U.S.C. 1541 (2000 ed., Supp. V), states, in pertinent part:
[The President is authorized] to use all necessary and appropriate force against
those nations, organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that have occurred on September 11,
2001, or harbored such organizations or persons, in order to prevent any future
acts of international terrorism against the United States by such nations,
organizations, or persons.
5. Statement Of The Case
This case involves a judicial determination from the District Court that Mr. Basardh
is being unlawfully detained in Guantanamo. Judge Huvelle granted the writ of habeas
corpus but found that, based on Kiyemba, she could not order Mr. Basardh conditionally
released. Both the grant of habeas corpus and the denial of conditional release are on appeal,
but because no stay has been requested or granted, Mr. Basardh is suffering immediate harm
from the Kiyemba ruling. This case provides an appropriate vehicle for certiorari prior to
judgment because he would immediately benefit from reversal of Kiyemba.
5
Following this Court's decision in Rasul v. Bush, 542 U.S. 466 (2004), Mr. Basardh
filed a petition for writ of habeas corpus on May 30, 2005, which was stayed at the
Government's request. While the habeas case was stayed, Congress enacted the Detainee
Treatment Act of2005, Pub.L.No. 109-148, 1001-1006, 119 Stat. 2680 (2005) (DTA),
purportedl y stripping 28 U. S. C. 2241 habeas jurisdiction for Guantanamo detainees. After
this Court held that the DTA did not apply retrospectively, Hamdan v. Rumsfeld, 548 U.S.
557, 577 (2006), Congress passed the Military Commissions Act of2006, Pub.L.No. 109-
366, 120 Stat. 2600, 2635 (MCA), purporting to strip the District Courts' habeas jurisdiction
retroactively. In May 2007, after the Court of Appeals upheld the MCA, Mr. Basardh filed
a petition for relief under the DT A.
In Boumediene v. Bush, 128 S.Ct. 2229 (2008), this Court invalidated the MCA's
jurisdiction-stripping provision, stating that the DTA remained otherwise intact as a parallel
remedy. After Boumediene, Guantanamo prisoners, including some of the petitioners in
Kiyemba, won relief under the DTA. Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008). The
Court of Appeals decided to hold Mr. Basardh's DTA petition in abeyance pending
conclusion of the habeas proceedings, noting "the distinct possibility that in light of
Boumediene, we have lost jurisdiction over Basardh's petition and every other petition filed
under the Detainee Treatment Act." Basardh v. Gates, 545 F.3d 1068, 1069 (D.C. Cir.
2008). This foreshowing became reality in Bismullah v. Gates, 551 F.3d 1068, 1075 .
(D.C.Cir. 2009), where the court held that the invalidation of the MCA habeas-stripping
6
provision invalidated the jurisdiction conferred by the DT A for direct Court of Appeals
review of enemy combatant designations.
Following Boumediene, stays in the habeas cases were dissolved on July 29,2008.
Following litigation involving procedural framework issues common to all petitioners, the
District Court granted Mr. Basardh's motion for discovery on December 22, 2009, as
amended on January 5, 2009. On January 23, 2009, the Government filed classified
documents with the Court Security Office. Mr. Basardh filed a motion for judgment, to
which the Government responded on March 18,2009, after which the petitioner replied.
On March 31, 2009, the District Court held a hearing on Mr. Basardh's habeas
petition. During the classified portion of the hearing, the parties presented evidence and
arguments regarding the motion for judgment. The petitioner listened to arguments during
the unclassified portion via telephone from Guantanamo. At the conclusion of the hearing,
the District Court granted the petition for habeas corpus, issuing a written opinion on April
15,2009. The unclassified opinion was filed on April 17,2009.
The District Court granted habeas relief on a single ground: the AUMF, which the
Government conceded provided the sole authority for Mr. Basardh's detention, does not
permit the Government to continue to detain Mr. Basardh because the purpose of detention
is no longer being served. The District Court relied on Hamdi v. Rumsfeld, 542 U.S. 507,
518-21 (2004), in determining that "the AUMF does not authorize the detention of
individuals beyond that which is necessary to prevent those individuals from rejoining the
7
battle, and it certainly cannot be read to authorize detention where its purpose can no longer
be attained." Appendix at 8. The District Court concluded that Mr. Basardh's continued
detention was unlawful based on the totality of the circumstances developed in his case:
[C]onsidering the totality of the circumstances, the Court concludes that the
government has failed to meet its burden of establishing that Basardh's continued
detention is authorized under the A UMF' s directive that such force be used "in order
to prevent future acts of international terrorism." The undisputed facts establish that
Basardh's [redacted] is known to the world, and thus, any ties with the enemy have
been severed, and any realistic risk that he could rejoin the enemy has been
foreclosed. As a result, the Executive's asserted justification for his continued
detention lacks a basis in fact as well as in law.
Appendix A at 10.
As a remedy, the District Court ordered the Government to take necessary and
appropriate diplomatic steps to facilitate Mr. Basardh's release, but denied his request to be
conditionally released into the United States or transported to a safe haven in light of
Kiyemba. Appendix A at 11. On May 29, 2009, the Government filed a notice of appeal, and
on June 2, 2009, the petitioner filed his notice of a cross-appeal of the denial of an effective
remedy.
6. Reasons For Granting A Writ Of Certiorari
The Court of Appeals in Kiyemba held that Article III courts are impotent to remedy
indefinite and illegal detention of prisoners within their habeas jurisdiction. The question
presented in the petition for certiorari filed in Kiyemba - and which Mr. Basardh adopts -
is of exceptional importance: whether a federal court exercising its habeas jurisdiction has
8
the authority to order the conditional release of prisoners where continued detention is no
longer authorized.
Mr. Basardh, like the Kiyemba petitioners, is illegally and indefinitely detained, yet
based on Kiyemba, has been denied the meaningful habeas remedy he sought. His case and
that of the Kiyemba petitioners raise the same legal question regarding the remedy that is
available for prevailing Guantanamo petitioners. Mr. Basardh incorporates by this reference
the petition for certiorari filed in Kiyemba. Appendix B. He also incorporates by reference
the amicus curiae brief filed on his behalf in Kiyemba on April 29, 2009. Appendix C. If
the Court should find that the transfer of the Kiyemba petitioners from Guantinamo moots
that case, the Court should grant certiorari before judgment in this case to consider this most
urgent and grave question. The Court should also consider summary reversal of the Court
of Appeals' ruling, as advocated on pages 14-16 of the amicus curiae brief.
Certiorari before judgment is appropriate: judicial authority to grant habeas relief that
results in conditional release of the prisoner is of such public importance as to justify
deviation from normal appellate practice. The lower courts have had a full opportunity to
consider the discrete, yet immensely important issue. The significance to the judicial and
executive branches is acute. And the normal appellate process would extend the detention
already adjudicated to be unlawful. Granting the petition for certiorari before judgment in
this case will permit this Court to resolve an issue that only this Court should settle and that
9
would otherwise evade review. This is the rare case in which the Court's immediate
intervention is warranted.
7. Conclusion
F or the foregoing reasons, in the event the Court finds the Kiyemba case to be moot,
Stephen . Sady
Attorneys for Petitioner
10
Case 1 :05-cv-00889-UNA FpeO Filed 04/17/2009 Page 1 of 11
REDACTED
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
YASIN MUHAMMED BASARDH
)
)
)
)
)
)
)
)
)
)
)
Petitioner,
v. Civil Case No. 05-889 (ESH)
BARACK II. OBAMA et aL,
Respondents.
MEMORANDUM OPINlON"
Petitioner Yasin Muhammed Basardh <petitioner" or "Basardh") is a detainee
who has been held at the U.S. Naval Base at Guantanamo Bay, Cuba for the past seven
years. He alleges that he is being unlawfully detained by respondents President Bamek
H. Ohama, Secretary of Defense Robert M. Gates, Army Brigade General Jay Hood, and
Anny Colonel Brice Gyurisko.
1
Before the Court is petitioner's motion for judgment and TCspondents' opposition
thereto. In reaching its decision, the Court has relied upon classified intervicv.'S of
petitioner and others conducted by law enforcement and intelligence personnel, as well as
upon classified information derived from other intelligence sources and methods. The
Court also revfewed ex parte and in camera a top secret-SCI document.
2
I Pursuant to Federal Rule of Civil Procedure 2S(d), if a public office< named as a party to an
action in his officie.l capacity ceases to hold office, the Court will automatically substitute iliat
officer's successor. Accordingly, the Court substitutes Baraclc H. Obama for George W. Bush
and RobertM. (hies for Donald H. Rumsfeld. .
l "[TJhe court tm"s inherent authority to review classified material ex parte, In camera lIS part of its
judiCial review function." Jifry v. Fed. Aviation Admin., 370 F.3d 1174, 1182 (D.C. Cir. 2004);

I:" "",
iL.D
REDACTED
Appendix A
Page 1 of 11
Case 1 :05-cv-00889-UNA Document 136 Filed 04/17/2009 Page 2 of 11
On March 31,2009, the Court held a hearing on petitioner's habeas petition.
During the classified portion of this proceeding, counsel for both parties presented
evidence and arguments regarding petitioner's motion, and immediately thereafter, the
Court held an unclassified hearing, which was under seal at petitioner counsel's request,
during which counsel for both parties presented legal arguments. Petitioner BasaIdh
listened to the unclassified portion via a live telephone transmission to Guantanamo Bay,
Cuba.
At the end of this proceeding, the Court granted the petition for habeas and now
issues this Memorandum Opinion to explain the reasons for its decision.
BACKGROUND
The Court is unable to publicly document all material facts in this case because
much of the information has been deemed classified or protected.
3
As a result, the
following factual summary is somewhat abbreviated, but it is nonetheless sufficient to
explain the Court's decision, since, for purposes orthis motion, petitioner's activities
prior to his detention at Guantanamo (which are contested by the parties) are not at issue
here. Rather the only issue before the Court is a narrow one - what, if any, relevance
see also BismuIlah v. Gates, 514 F.3d 1291, 1292-93 (D.C. Cir. 2008) (en banc) (per curiam)
(granting motion for leave-to file top secret-SCI declarations solely for judges' ex pane and in
camera review); Tabbaa v. Cher/oj[, 509 F.3d 89, 93 n.1 (2d Cir. 2007) (reviewing classified
intelligence ex parte and in camera ''to ensure independently that there was a sufficient b a s i s ~ for
government witness's unclassified statements and finding that "[t]hese materials confirmed what
the record available to both parties already made plain").
3 The Executive has "authority to classify and control access to information bearing on national
security," and the Supreme Court has stated that "the protection of classified infonnation must be
commined to the broad discn:tion of the agency responsible, and this must include broad
discretion to detannine who may have access to it." Dep't a/the Navy v. Egan, 484 U.S. 518,
527 (1988); see also Fitzgibbon v. Cent. Intelligence Agency, 911 F.2d 755,762 (D.C. Cir. 1990).
2
Appendix A
Page 2 of 11
Case 1 :05-cv-00889-UNA Document 136 Filed 04/17/2009 Page 3 of 11
does Basardh' to a determination of the lawfulness of
his continued detention?
Petitioner Basardh, a Yemeni national, was arrested _in early 2002.
was transferred to United States custody, and has been detained in
within Guantanamo, and
thereafter, he was subjected t6 physical attacks by other detainees. See Unclassified
Summary of Evidence for Combatant Status Review Tribunal, 3, 8 (Oct. 21 ;2004)
(reporting Basardh "was beaten by other Detainees who believe be is a spy" and "was
threatened many times to be 1cilled by other Detainees"); Unclassified Translation of
Detainee's Written Statement, 2 (Nov. 8,2005) ("[M]y family and I are threatened to be
killed ... and this threat happened here in prison for many times. ''). On March 3, 2006,
the Department of Defense, over Basardh's objection, responded to a Freedom of
4 Due to the, classified natu? f t h e evidence, the Court cannot be more specific regarding the
5"
3
Appendix A
Page 3 of 11
Case 1 :05-cv-00889-UNA Document 136
Filed 04/17/2009 Page 4 of 11
Information Act request by releasing to the public transcripts ofBasardh's Combatant
Status Review Tribunal ("CRST") and Administrative Review Board ("ARB")
proceedings. Those transcripts reveal, in unredacted form, that Basardh "cooperated his
entire stay while [at Guantanamo]." Unclassified Summary of Evidence for CSRT, 3
(Oct. 21, 2004); see also Unclassified Summary of ARB Proceedings for ISN 252, at 5
("I am cooperative to the point where my cooperation with everyone has led to many
people threatening my life."). On February 3, 2009, the Washington Post published a
front-page article regarding Basardh's cooperation, specifically citing him by name. See
Del Quentin Wilber, Detainee-Informer Presents Quandary for Government,
WASHINGTON POST, Feb. 3, 2009, at A1. This article was translated and published in
-Yemen where Basardh's family lives. In addition, the goverrunent has acknowledged
that Basardh hB.s suffered physical attacks and has received credible death threats as a
In addition, throughout this period_the government has encouraged
Basardh
.7 These encouragements were reinforced by the
6 ThePosr article reported that Barsardb recdved privileges not generally available to o t h e ~
detainees, including chewing tobacco, apple pies, magazines, and "other comfort items." Del
Wilber, Detainee-Informer Presents Quandary for Government, W ASHINOTON POST,
4
Appendix A
Page 4 of 11
Case 1 :05-cv-00889-UNA Document 136
Filed 04/17/2009 Page 5 of 11
written notice provided to each detainee prior to his ARB proceeding. This notice
advised the detainee that in making its detennination whether a detainee could be
released or transferred from Guantanamo, the ARB ''will consider ... if you are working
with the United States government trying to help." See, e.g., of the Decision
of an ARB ICO ISN 252 to Continue Detention (Jan. 31,2006). According to the
government, this notice was given to petitioner prior to each of his ARB hearings in
2005,2006, and 2007, pursuant to the Department of Defense procedures governing the
administrative review process that "pennit[ted] each enemy com batant ... to explain why
he is no longer a threat to the United States and its allies .... " Order, Administrative
Review Procedures for Enemy Combatants in the Control of the Department of Defense
at Guantanamo Bay Naval Base, Cuba, 1 (May 11,2004). As recognized by these
procedures, the law of war permits "detention for the practical purpose of preventing the
enemy from rejoining the conflict," id., and therefore, a detainee's need for continued
detention (or a ''threat assessment") was to be conducted annually ;'to determine if the
enemy combatant remains a threat to the United States ... " Id. at 3. .
Despite the ARB's recognition that whether a detainee presented a current threat,
including whether he is_is relevant to a detennination as to whether he
5
Appendix A
Page 5 of 11
Case 1 :05-cv-00889-U NA ___ ....
should be "release[d], transfer[red], or continue[dJ to [be] detain[ed] ... ," id at 5,
Basardh has not been cleared for release or transfer but continues to be held as an enemy
combatant!
LEGAL ANALYSIS
Petitioner raises a myriad of novel legal arguments as to why his petition should
be granted based on his post-dctention conduct and his alienation from enemy forces as a
result of his _ The issue, however, can be decided without resort to the
principles enunciated by the Supreme Court in Santo bello v. New York, 404 U.S. 257,
262 (1971) ("When the plea rests in any significant degree on a promise or agreement of
the [government], so that it can be said to be part of the inducement or consideration,
such promise must be fulfilled.',), or in DeShaney v. Dep't of Soc. Servs., 489 U.S. 189,
199-200 (1989) (recognizing the state-created danger doctrine), or by application of the
"arbitrary and capricious" standard of the Administrative Procedures Act, 5 U.S.C. .
706(2)(A).9
I The government has recently abandoned its use of the term "enemy combatant" and no longer
asserts that the President possesses inherent detention authority based on his constitutional role as
Commander-in-Chief of the anned forces. See Respts' Mem. Regarding the Governmont's
Detention Authority Relative to Detainees Held at Guantanamo Bay, Dk!. No. 126 (Mar. 13,
2009). In addition, ARB proceedings are no longer being conducted. Instead, ongoing reviews
are being conducted pursuant to Review and Disposition of Individuals Detained at the:
Guantanamo Bay Naval Base and Closure of Detention Facilities, Exe:c. Order 13,492, 74 Fe:d.
Reg. 4897 (Jan. 22,2009).
9 Given why petitioner's post-detention conduct, including his
not merit release or transfer, it could certainly be argued that
the ARB of the APA. This argument. however. would be met with the
claim that the AP A is inapplicable due to the exemption in Section 701(\>)(1 )(G) for "military
authority exercised in the field in the time of war. or in occupied territory." While this issue has
yet to be decided by the D.C. Circuit, Judge Randolph in his concurrence in Al Odah v. United
States, 321 F.3d 1134, 1149 (D.c. Cir. 2003), and Judges Green and Kollar-KotellY have held
that the exemption in Section 70 I (b)(lXG) does apply. In re Guantanamo Bay Detainees Cases,
355 F. Supp.2d 443, 480-81 (D.D.C. 2005). vac., Baimediene v. Bush, 476 F.3d 981 (D.C. Cir.
6
Appendix A
Page 6 of 11
Case 1 :05-cv-00889-UNA Document 136 Filed 04/17/2009 Page 7 of 11
Similarly, the Court is spared from having to wade into the debate over whether
the due process principles recognized by the Supreme Court in Hamdi v. Rums/eld also
apply to a non-U.S. citizen held at Guantanamo. 542 U.S. 507, 525-35 (2004) (plurality
opinion) (applying Matthews v. Eldridge, 424 U.S. 319 (1976) to a citizen who is held as
an enemy combatant); see also Boumediene v. Bush, 128 S. Ct. 2229, 2262 (2008);
Kiyemba v. Obama, Nos. 055487,05-5489,2009 WL 910997, at 6 n.4 (D.C. Cir. Apr.
7, 2009) (Kavanaugh, J., concurring) (assuming without deciding that Guantanamo
detainees "possess constitutionally based due process rights with respect to transfers");
Kiyemba v. Obama, 555 F.3d 1022, 1026 (D.C. Cir. 2009) (stating in dicta that "the due
process clause does not apply to aliens without property or presence in the sovereign
territory of the United States"). Rather, the Court can limit itself to addressing
respondents' contention that the Authorization for the Use of Military Force C"AUMF"),
Pub. 1. 107-40, 115 Stat. 224 (2001), as interpreted by Hamdi, authorizes the government
to imprison petitioner regardless of whether he continues to pose any threat of returning
to the battlefield so long as the United States is still engaged in hostilities with al-Qaeda
or the Taliban, and since those hostilities are still ongoing, Basardh's_
irrelevant to the determination of whether he is lawfully detained. Respondents' position
is contrary to both the AUMP and Hamdi.
As conceded by the government, its authority to imprison individuals at
Guantanarno Bay is derived from the AUMF, which the government contends is
"informed by the principles of the laws of war." See Respts' Mem. Regarding the
Government's Detention Authority Relative to Detainees Held at Guantanamo Bay, Dkt.
2007), rev'd, Boumediene v. Bush, 128 S. Ct 2229 (2008); RasuI v, Bush, 215 F, Supp.2d 55, 64
n.ll (D.D.C. 2002), rev 'd,Al Odah v. United Stales, 103 Fed. App'x 676 (D.C. Cir, 2004).
7
Appendix A
Page 7 of 11
Case 1 :05-cv-00889-UNA Document 136 Filed 04/17/2009 Page 8 of 11
No. 126, Civ. No. 05-889, at 1, 3-8 (March 13,2009) (ESH); see also supra note 8. The
AUMF was passed by Congress in response to the terrorist attacks of September 11,
2001. The AUl'vfF authorizes the President
to use all necessary and appropriate farce against those nations, organizations, or
persons he determines planned, authorized, committed, or aided the terrorist
attacks that have occurred an September 11, 2001, or harbored such organizations
or persons, in order to prevent any future acts oj international terrorism against
the United Slates by such nations, organizations or persons.
AUMF 2(a) (emphasis added).
This statutory language of the AUMF, which defines the Executive's detention
authority in pl3.in and unambiguous terms, speaks only to the prevention of "Juture acts of
international terrorism against the United States." ld. (emphasis added). It does not
authorize unlimited, unreviewable detention. Instead, the AUMF requires some nexus
between the force (i.e., detention) and its purpose (i.e., preventing individuals from
rejoining the enemy to commit future hostile acts). Accordingly, theAUMF does not
authorize the detention of individuals beyond that which is necessary to prevent those
individuals from rejoining the battle, ~ d i.t certainly cannot be read to authorize detention
where its purpose can no longer be attained.
Consistent with the AUMF, Hamdi recognized that the Executive may detain
combatants for a limited purpose only. Hamdi stated unequivocally that, under the
AUMF, "indefinite detention for the purpose ofinterrogation is not authorized," 542 U.S.
at 521 (plurality opinion). that detention of combatants must be "devoid of all penal
character," iei. at 518, and that such detention is "solely protective custody, the only
purpose of which is to prevent the prisoners of war from Jurlher participation in the
war." lei. (emphasis added). Hamdi further explained, "[t]he object of capture is to
8
Appendix A
Page 8 of 11
Case 1 :05-cv-00889-UNA Document 136 Filed 04/17/2009 Page 9 of 11
prevent the captured individual from serving the enemy," and added that prisoners are to
be "treated humaneJy and in time exchanged, repatriated or otherwise released." Id. at
518-19 (quoting In re Territo, 156 F.2d 142, 145 (9th Cir. 1946)).10 Simply stated, "the
purpose of detention is to prevent the captured individuals from returning to the field of
battle and taking up anns again." Id. at 518.
As previously noted, this limitation on the Executive's detention authority is
consistent with the administrative procedures that the government adopted in 2004 for the
CSRT and ARB proceedings for determining whether continued detention of a detainee is
justified. In both sets of rules, the government is obligated to perform ongoing threat
assessments of detainees based upon the detainee's current status. See Order Establishing
CSRT 13(i) (July 7,2004); Memorandum for Secretaries of the Military Departments
Chairman of the Joint Chiefs of Staff under Secretary of Defense for Policy, Enclosure 3
(July 14,2006).
Based on the clear language of the AUMF, as interpreted in Hamdi, this Court
must conclude that Basardh's current likelihood of rejoining the enemy is relevant to
whether his continued detention is authorized under the law. Just as the Court considers
"the most current evidence supporting a detainee's detention," In re Guanlanamo Bay
10 The government has relied extensively on the Ninth Circuit's opinion in In re Territo to argue
that petitioner can be beld until the hostilities arc over. But Territo is of no help. First, Territo,
unlike petitioner, was a prisoner of war, having been captured in unifonn on the battlefield in .
Italy during World WIl! II. 156 F.2d at 143. Second, Territo, while being held as a prisoner of
war at a camp in California, voluntarily joined an Imljan Service Unit where he worked as a
laborer for eighty cents per day but
ld. Finally, and perhaps most importantly, the Hamdi Court cited
Territo's recognition of the limited purpose for detention - ''The object of capture is to prevent
the captured individual from serving the enemy. He is disarmed and from then on must be
removed as completely as practicable from the front, treated humanely and in time exchanged,
repatriated or otherwise released." Hamdi, 542 U.S. at 518-19 (quoting In re Territo, 156 F.Zd at
145).
9
Appendix A
Page 9 of 11
Case 1 :05-cv-00889-UNA Document 136 Filed 04/17/2009 Page 10 of 11
Detainee Lit/g., Dkt. No. 39, Misc. No. 08-442 (TFH), as was strenuously argued by the
government when it sought leave to amend its factual returns, the Court must also
consider the most current evidence relating to whether a detainee is no longer a threat.
And, when this evidence is factored into the assessment of the legality of Basardh's
detention, it inexorably follows that the reques.ted relief is warranted, for Basardh can no
longer constitute a threat to the United States. Basardh has
Given the widespread public disclosure
prospect ofrus rejoining those entities defined in the AUMF is, at best, a remote
possibility. The government does not - and cannot - contest this. I I
Therefore, considering the totality of the circumstances, the Court concludes that
the government has failed to meet its burden of establishing that Basardh's continued
detention is authorized under the AUMF's directive that such force be used "in order to
prevent future acts of international terrorism.
nl2
The undisputed facts establish that .
Basardh's _is known to the world, and thus, any ties with the enemy have
been severed, and any realistic risk that he could rejoin the enemy has been foreclosed.
As a result, the Executive's asserted justification for his continued detention lacks a basis
in fact as well as in law.
11 In fact, the government does not argue that Basardh is likely to rejoin those entities upon
release, but rather, its counsel declined to offer an opinion on the subject.
11 Under habeas corpus law, the government bears the initial burden of establishing a sufficient
basis for the lawful detention of a person seeking a writ of habeas corpus. See Boumediene v.
Bush, 128 S. CI. at 2270; Hamdi v. Rumsfeld, 542 U.S. at 53334. The Case Management Order
issued in this case also requires the government to prove, "by a preponderance of the evidence,
the lawfulness of the petitioner's detention." In re Guantanamo Bay Detainee Litlg., Dkt. No.
940, Misc. No. 08-442 (November 6, 2008) (TFH), amended by, Dkt. No. 1316, Misc. No. 08-
442 (December 16, 2008) ([FH).
10
Appendix A
Page 10 of 11
Case 1 :05-cv-00889-UNA Document 136 Filed 04/17/2009 Page 11 of 11
CONCLUSION
For all the foregoing reasons, and for the reasons stated during the hearing held on
March 31,2009, the Court grants the petition for a writ of habeas corpus. The Coun
further orders the govemmel11 to take all necessary and appropriate diplomatic steps to
facilitate petitioner's release forev.,'ith. The CourL however. must deny petitioner's
request that he be released into this country or be transported to a safe haven in light of
Kiyemba 1'. Obama, 555 F.3d at 1024.
[;10 ~ a / e y G / ~
April 15,2009
ELLEN SEGAL HUVELLE
United States District Judge
11
Appendix A
Page 11 of 11
No. 08-

<!Court of toe Wiuiteb
JAMAL KIYEMBA, et al.,
Petitioners,
v.
BARACK H. OBAMA, et al.,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Eric A. Tirschwell
Michael J. Sternhell
Darren LaVerne
Seema Saifee
KRAMER LEVIN NAFTALlS
& FRANKEL LLP
1177 Avenue of the Americas
New York, New York 10036
Elizabeth P. Gilson
383 Orange Street
New Haven, CT 06511
J. Wells Dixon
CENTER FOR
CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, New York 10012
Angela C. Vigil
BAKER & MCKENZIE LLP
Mellon Financial Center
1111 Brickell Ave., Ste. 1700
Miami, Florida 33131
Sabin Willett
Counsel of Record
Rheba Rutkowski
Neil McGaraghan
Jason S. Pinney
BINGHAM MCCUTCHEN LLP
One Federal Street
Boston, Massachusetts 02110
(617) 951-8000
Susan Baker Manning
BINGHAM MCCUTCHEN LLP
2020 K Street, N.W.
Washington, D.C. 20036
(202) 373-6000
George Clarke
MILLER & CHEVALIER CHTD
655 15th St., N.W., Ste. 900
Washington, D.C. 20005
Counsel to Petitioners
Appendix B
Page 1 of 49
QUESTION PRESENTED
Whether a federal court exercising its habeas juris-
diction, as confirmed by Boumediene v. Bush, 553 U.S. -
-, 128 S. Ct. 2229 (2008), has no power to order the re-
lease of prisoners held by the Executive for seven years,
where the Executive detention is indefinite and with-
out authorization in law, and release into the continen-
tal United States is the only possible effective remedy.
Appendix B
Page 2 of49
11
PARTIES TO THE PROCEEDING
The Petitioners are Jamal Kiyemba, as next friend,l
Abdul Nasser, Abdul Semet, Hammad Memet,
Huzaifa Parhat, Jalal Jalaldin, Ibrahim Mamet, as
next friend, Edham Mamet, Abdul Razakah, Ahmad
Tourson, Arkin Mahmud, Bahtiyar Mahnut, Ali
Mohammad, Thabid, Abdul Ghaffar, and Adel Noori,
stateless refugees from the Xinjiang Uighur Autono-
mous Region of Western China, who are imprisoned at
Guantanamo Bay, Cuba and have been in the custody
of the United States military for over eight years.2
The Respondents are Barack H. Obama, President
of the United States, Robert M. Gates, Secretary of the
Department of Defense, Rear Admiral David M.
Thomas, Jr., Commander, Joint Task Force GTMO,
Guantanamo Bay, Cuba, Colonel Bruce E. Vargo,
Commander, Joint Detention Operations Group,
Guantanamo Bay, Cuba.
1 Each Petitioner also directly authorized counsel to act in these
cases.
2 Abdul Sabour, Khalid Ali, and Sabir Osman were petitioners be-
low, but discharged counsel following the court of appeals' deci-
sion and are not Petitioners here.
Appendix B
Page 3 of49
iii
TABLE OF CONTENTS
QUESTION PRESENTED .................................... i
PARTIES TO THE PROCEEDING ..................... ii
TABLE OF CONTENTS ..................................... iii
JURISDICTION ................................................... 3
RELEVANT PROVISIONS OF LAW ................... 3
STATEMENT OF THE CASE ............................. 3
A. Factual Background ..................................... 3
B. Procedural History ....................................... 5
1. The habeas petitions and the DT A
litigation ................................................. 5
2. Proceedings following Boumediene and
Parhat ..................................................... 7
C. The Decisions Below .................................... 9
1. The district court's decision .................... 9.
2. The D.C. Circuit's decision ................... 12
REASONS FOR GRANTING THE
PETITION ................................................ 14
A. The Decision Below Must Be Reversed
Because, In Conflict With This Court's
Precedents, It Subordinates Judicial Au-
thority To Relieve Unlawful Imprison-
ment To The Discretion Of The Political
Branches .................................................... 14
Appendix B
Page 4 of49
iv
1. Kiyemba conflicts with Boumediene
and is unfaithful to the constitutional
commands it enforces ............................ 14
a. Kiyemba inverts Boumediene's
analysis of the Suspension Clause
as crucial to the separation of
powers ............................................. 15
b. Kiyemba's holding rests on an
erroneous understanding of the
Great Writ guaranteed by the
Suspension Clause ............................ 18
i. Kiyemba erroneously placed the
burden on the prisoner to justify
release, rather than on the jailer to
justify imprisonment ........................ 18
ii. The law of habeas guarantees and
requires release in these
circumstances, where no other
remedy is available .......................... 22
2. Kiyemba's holding that immigration
laws bar habeas relief would effect an
unconstitutional suspension of the
writ and conflicts with the Court's
precedents ............................................. 24
3. Mezei does not support Kiyemba . .......... 28
B. Petitioners' Statutory Habeas Rights
Provide Separate Grounds For Reversal
Of I{iyemba . ............................................... 30
1. Petitioners are protected by statutory
habeas .................................................... 30
Appendix B
Page 5 of 49
v
a. Petitioners' imprisonment violates
the Fifth Amendment Due Process
Clause .............................................. 31
b. Petitioners' indefinite
imprisonment violates the Geneva
Conventions ..................................... 34
C. Judicial Economy And The Surpassing
Importance Of The Question Presented
Require The Court's Immediate
Intervention ............................................... 30
CONCLUSION .................................................... 36
APPENDIX A - Opinion of the United States
Court of Appeals for the District of Co-
lumbia Circuit Decided February 18,
2009 .......................................................... la
APPENDIX B - Memorandum Opinion and
Order of the United States District Court
for the District of Columbia Filed Octo-
ber 9, 2008 ................................................. 38a
APPEND IX C - Order Granting Motion to
Stay of the United States Court of Ap-
peals for the District of Columbia Circuit
Filed October 20, 2008 ............................... 64a
APPENDIX D - Relevant Provisions of Law ..... 75a
Appendix B
Page 6 of49
VI
TABLE OF AUTHORITIES
Page(s)
CASES
Bismullah v. Gates,
501 F.3d 178 (D.C. Cir. 2008) ............................ 6
Boumediene v. Bush,
553 U.S. --,128 S. Ct. 2229 (2008) ........... passim
Bowen v. Johnston,
306 U.S. 19 (1939) ........................................... 16
Carafas v. LaVallee,
391 U.S. 234 (1968) ......................................... 21
Carbo v. United States,
364 U.S. 611 (1961) ......................................... 22
Clark v. Martinez,
543 U.S. 371 (2005) .............................. 10,27,28
Coolidge v. New Hampshire,
403 U.S. 443 (1971) ......................................... 20
Ex parte Bollman,
8 U.S. (4 Cranch) 75 (1807) ............................. 22
Ex parte Burford,
7 U.S. (3 Cranch) 448 (1806) ........................... 19
Ex parte Yerger,
75 U.S. (8 Wall) 85 (1868) ............................... 21
Appendix B
Page 7 of49
vii
Foucha v. Louisiana,
504 U.S. 71 (1992) ........................................... 33
Rasul v. Bush,
542 U.S. 466 (2004) .................................. passim
Hamdi v. Rumsjeld,
542 U.S. 507 (2004) ........................................... 1
Harris v. Nelson,
394 U.S. 286 (1969) ......................................... 16
Hernandez-Carrera v. Carlson,
546 F. Supp. 2d 1185 (D. Kan. 2008) ............... 28
Hussain v. Mukasey,
518 F.3d 534 (7th Cir. 2008) ............................ 28
In re Ali,
128 S. Ct. 2954 (2008) ........................................ 1
In re Guantanamo Bay Detainee Litig.,
581 F. Supp. 2d 33 (D.D.C. 2008) ...................... 2
In re Ross,
140 U.S. 453 (1891) ......................................... 32
INS v. Chadha,
462 U.S. 919 (1983) ......................................... 26
INS v. St. Cyr,
533 U.S. 289 (2001) .............................. 18,22,26
Johnson v. Eisentrager,
339 U.S. 763 (1950) .................................... 13, 31
Appendix B
Page 8 of49
viii
Kiyemba v. Obama,
555 F.3d 1022 (D.C. Cir. 2009) ................. passim
Mali v. Keeper oj the Common Jail oj Hudson
County, New Jersey,
120 U.S. 1 (1887) ............................................. 34
Massachusetts Trs. oj E. Gas & Fuel Assocs. v.
United States,
377 U.S. 235 (1964) ......................................... 35
N adaraJ'ah v. Gonzales,
443 F.3d 1069 (9th Cir. 2006) .......................... 28
Parhat v. Gates,
532 F.3d 834 (D.C. Cir. 2008) ................. 4, 5, 6, 7
Preiser v. Rodriguez,
411 U.S. 475 (1973) ......................................... 19
Price v. Johnston,
334 U.S. 266 (1948) ......................................... 22
Qassim v. Bush,
407 F. Supp. 2d 198 (D.D.C. 2005) ................ 3,9
Reid v. Covert,
354 U.S. 1 (1957) ............................................. 32
Richmond v. Lewis,
506 U.S. 40 (1992) ........................................... 23
Shaughnessy v. United States ex rel. Mezei,
345 U.S. 206 (1953) ......................... 10, 12, 28, 29
Appendix B
Page 9 of49
IX
Tran v. M ukasey,
515 F.3d 478 (5th Cir. 2008) ............................ 27
United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537 (1950) .................................... 12, 29
United States v. Salerno,
481 U.S. 739 (1987) ......................................... 33
United States v. Verdugo-Urquidez,
494 U.S. 259 (1990) ......................... 12, 31, 32, 33
Whiteley v. Warden,
401 U.S. 560 (1971) ......................................... 23
Wilkinson v. Dotson,
544 U.S. 74 (2005) ...................................... 22, 23
Wingo v. Wedding,
418 U.S. 461 (1974) .................................... 19, 22
Zadvydas v. Davis,
533 U.S. 678 (2001) ......................... 10, 12, 27, 33
DOCKETED CASES
Al Sanani v. Obama,
No. 05-02386-RBW, Dkt. No. 1058 (D.D.C.
filed Mar. 9, 2009) ............................................. 2
In re Petitioner Ali,
S. Ct. No. 06-1194 (filed February 12, 2007) ...... 4
Appendix B
Page 10 of 49
x
CONSTITUTION
U.S. CONST. art. I, 9, cl. 2 ............................... 7, 13
U.S. CONST. art. 111 ........................................... 1, 13
U.S. CONST. amend V ...................................... 32, 33
STATUTES
8 U.S.C. 1182 ..................................................... 25
8 U.S.C. 1226a .............................................. 25, 27
28 U.S.C. 1254 ..................................................... 3
28 U.S.C. 2241 ..................................... 7, 30, 31, 34
28 U.S.C. 2243 ..................................................... 8
Detainee Treatment Act of 2005, Pub. L. No.
109-148, 1001-1006, 119 Stat. 2680 (2005)
("DTA") .................................................. passim
Military Commissions Act of 2006, Pub. L. No.
109-366,120 Stat. 2600, 2635 ("MCA") .. 6,26,31
OTHER AUTHORITIES
3 WILLIAM BLACKSTONE, COMMENTARIES ON
THE LAW OF ENGLAND *133 ............................ 21
FEDERAL HABEAS CORPUS PRACTICE AND
PROCEDURE 33.1 .......................................... 23
Appendix B
Page 11 of49
xi
Geneva Convention Relative to the Treatment
of Prisoners of War, arts. 3, 118, Aug. 12,
1949,6 U.S.T. 3316 (Third Geneva
Convention) .................................................... 34
Geneva Convention Relative to the Protection
of Civilian Persons in Time of War, arts. 3,
132-35, Aug. 12, 1949,6 U.S.T. 3516 (Fourth
Geneva Convention) ........................................ 34
Jared A. Goldstein, Habeas Without Rights, 2007
WIS. L. REV. 1165 (2007) ............................ 20, 21
Jonathan L. Hafetz, The Untold Story of
Noncriminal Habeas Corpus and the 1996
Immigration Acts, 107 YALE L. J. 2509 (June
1998) ............................................... 19, 20, 24, 26
Paul D. Halliday, G. Edward White, The
Suspension Clause: English Text, Imperial
Contexts, and American Implications, 94 VA.
L. REV. 575 (2008) ........................................... 19
THE FEDERALIST No. 84 ...................................... 22
Appendix B
Page 12 of49
1
PRELIMINARY STATEMENT
In the decision below ("Kiyemba"), a panel major-
ity of the court of appeals held that Article III courts
are powerless to remedy indefinite and illegal Execu-
tive detention of prisoners within their habeas jurisdic-
tion. If allowed to stand, the decision would eviscerate
this Court's landmark decision in Boumediene v. Bush,
553 U.S. -,128 S. Ct. 2229 (2008).1
In this case, the Executive presented for payment,
and the Kiyemba majority honored, the "blank check"
the Court forbade five years ago. See Hamdi v. Rums-
jeld, 542 U.S. 507, 536 (2004) (plurality). Notwith-
standing Hamdi, Rasul v. Bush, 542 U.S. 466 (2004),
and Boumediene, the panel majority inverted the
Court's decree that the Executive cannot "switch the
Constitution on or off at will." Boumediene 128 S. Ct.
at 2259. Indeed, the Executive has construed Kiyemba
in precisely this way, contending in recent filings that
habeas proceedings brought by prisoners approved for
1 Twenty-nine Guantanamo habeas cases have reached a final dis-
position since this Court decided Boumediene. In twenty-four of
them, district judges determined that there was no legal basis for
detention. Yet twenty-one of the "winners" remain at
Guantanamo. Lakhdar Boumediene--who took his case to this
Court, vindicated his right to habeas, and then "won" his case be-
fore the district court in November, 2008--remains imprisoned at
Guantanamo today. In 2008, this Court denied without prejudice
an original habeas petition filed by one of the Petitioners here, Ali
Mohammad. In re Ali, 128 S. Ct. 2954 (2008). Ali Mohammad
followed the Court's suggestion that, in light of Boumediene, he
"file a habeas petition in an appropriate district court with juris-
diction over the matter." Id. He did. Like the other Petitioners
here, he "won," yet soon will begin his eighth year of executive
imprisonment at Guantanamo.
Appendix B
Page 13 of49
2
transfer should be stayed because, after Kiyemba, no
court can relieve a Guantanamo detainee's imprisonment.
2
The Great Writ requires the jailer to identify in a
return to the petition the law that justifies imprison-
ment. Kiyemba reverses this burden. Under Kiyemba,
the jailer needs no legal authorization to deny freedom,
and the prisoner needs the express authorization of
Congress to claim it. And while these Petitioners are
aliens, the question whether it is for the prisoner to jus-
tify release or the jailer to justify imprisonment arises
from every detention. It would be hard to overstate
the importance of the question presented in this case-
to the rule of law and to the public. The question is
fundamental, and there is every need for this Court's
immediate intervention.
OPINIONS BELOW
The district court's decision (Pet. App. 38a) is re-
ported at In re Guantanamo Bay Detainee Litig., 581 F.
Supp. 2d 33 (D.D.C. 2008). The opinion of the court
2 See Respondents' Memorandum in Support of a Stay of Proceed-
ings Involving Petitioners Who Were Previously Approved for
Transfer at 5, Al Sanani v. Obama, No. 05-02386-RBW, Dkt. No.
1058 (D.D.C. filed Mar. 9, 2009) (arguing that once the Executive
has approved a detainee for transfer, "a detainee will have re-
ceived the only relief the Court can provide with respect to the
fact of the detainee's detention"; that Kiyemba precludes "relief as
to the fact of detention available beyond already mandated dip-
lomatic efforts to find an appropriate receiving country"; and that
because a court cannot "question" diplomatic efforts, nor direct
them, "the Executive's decision approving a detainee for transfer
may render the detainee's request for habeas relief, i.e., release,
moot").
Appendix B
Page 14 of49
3
of appeals (Pet. App. la) is reported at Kiyemba v.
Obama, 555 F.3d 1022 (D.C. Cir. 2009).
JURISDICTION
The court of appeals entered judgment on February
18, 2009. Petitioners invoke this Court's jurisdiction
under 28 U.S.C. 1254(1).
RELEVANT PROVISIONS OF LAW
The constitutional and statutory provisions rele-
vant to this petition are set forth in Appendix D. Pet.
App.65a.
STATEMENT OF THE CASE
A. Factual Background
Petitioners are Uighurs, members of a Muslim mi-
nority from the Xinjiang Uyghur Autonomous Region
of far-western China, long oppressed by the communist
regime. Pet. App. 40; JA 411-12, 446, 477, 513, 1601.
3
Each fled China to escape that oppression. Pet. App.
40; JA 1601. Ten Petitioners eventually made their
way to a Uighur village in Afghanistan. Pet. App. 40;
JA 1601. 4 Four others settled separately among a
3 References to "JA," "SA," and "Classified Supplement" are to
the Joint Appendix, Supplemental Appendix, and Petitioners'
Classified Supplement, filed below in accordance with the proce-
dures governing Guantanamo cases.
4 Five Uighurs formerly imprisoned at Guantanamo, who were
sent to Albania in 2006 on the eve of a hearing before the D.C.
Circuit (and who have lived peacefully abroad ever since) were
also present in the village, see Qassim v. Bush, 466 F.3d 1073,
1074-75 (D.C. Cir. 2006), as were three men still incarcerated at
Guantanamo who were petitioners below not here.
Appendix B
Page 15 of 49
4
small Uighur expatriate community in Kabul, AJghani-
stan. See, e.g., JA 805, 913, 927. No Petitioner con-
templated or participated in any conflict with U.S. or
coalition forces, or had any connection with the Sep-
tember 11, 2001 attacks. See, e.g., JA 809, 846.
Petitioners were transferred to Guantanamo in
2002, and in May will begin their eighth year of im-
prisonment there. Pet. App. 41a; JA 414-15, 418, 1117-
18. Parhat v. Gates, 532 F.3d 834, 837 (D.C. Cir. 2008)
(facts surrounding capture and imprisonment of most
Petitioners). The conditions of confinement have at
times been severe. JA 1182-97. Yet as early as 2003
for most, and continuing through 2008 for the rest, the
U.S. military determined that each Petitioner was eli-
gible for release. Pet. App. 41a; JA 1568. Respondents
conceded in 2008 that no Petitioner is an enemy com-
batant. Pet. App. 42a; JA 1542,1568.
Although afforded many opportunities by the dis-
trict court, Respondents never offered evidence that
any Petitioner ever participated in terrorist activity,
committed any other crime,. is hostile toward the
United States, or is otherwise a danger to the public.
5
5 A U.S. military official stated that Petitioner Ali Mohammed
"ha[s] not developed any animosity towards the U.S. or Americans
in general, and hats] great admiration for such a wonderfully de-
mocratic society, where human rights are protected and people are
allowed to live their lives peacefully, with no threat of mistreat-
ment." Pet'n for Original Writ of Habeas Corpus (Declassified),
In re Petitioner Ali, S. Ct. No. 06-1194 (filed February 12, 2007)
at 21 n.19 (citing Thabid v. Bush, D.D.C. No. 05-2398, Dkt. 27 at
81) (classified factual return). "I have nothing against the Ameri-
cans," Petitioner Ahmad Tourson told his Combatant Status Re-
view Tribunal. JA 916. "We are just disappointed in the U.S.
Appendix B
Page 16 of49
5
As to Petitioner Huzaifa Parhat, the D.C. Circuit
noted, "It is undisputed that he is not a member of al
Qaida or the Taliban, and that he has never partici-
pated in any hostile action against the United States or
its allies." Parhat, 532 F.3d at 835-36.
The parties agree that Petitioners cannot be repa-
triated to China or any country that would render
them to China-despite Chinese demands-because
they would likely be tortured or worse. JA 1124, 1126-
27, 1174; see also Parhat, 532 F.3d at 838-39. The re-
cord is clear, however, that there is nowhere else to go
but the United States. Respondents had publicly
maintained throughout that Petitioners were "enemy
combatants," and the record evidences extensive dip-
lomatic resistance from China to resettlement abroad
and failed efforts over five years to obtain asylum from
more than 100 countries. Pet. App. 48a-49a & n.2, 59a-
60a; see also Classified Supplement.
B. Procedural History
1. The habeas petitions and the DTA litigation
Each Petitioner sought habeas relief in 2005.
6
JA
409,444,475, 510, 550, 582. The petitions alleged that
government, but we are still hoping that the U.S. government will
help because the U.S. government respects other people's rights."
JA 925. Petitioner Abdur Razakah testified, "There have been no
problems between the Americans and the Uighurs[.] [We] support
America." JA 955.
6 See JA 409, 444, 475, 510, 550, 582 (Kiyemba (05-1509), Mamet
(05-1602), Kabir (05-1704), Razakah (05-2370), Thabid (05-2398),
and Mohammon (05-2386. Mohammon's thirty petitioners in-
cluded Petitioners Abdul Ghaffar and Adel Noori. A new docket
Appendix B
Page 17 of49
6
Petitioners were not "enemy combatants," and that
there was no basis in law to support executive deten-
tion.
7
At Respondents' request, each case was stayed
for over three years. JA 13,68,164,348.
While the habeas cases were stayed, Congress en-
acted the Detainee Treatment Act of 2005, Pub. L. No.
109-148, 1001-1006, 119 Stat. 2680 (2005) ("DTA"),
and the Military Commissions Act of 2006, Pub. L.
No. 109-366, 120 Stat. 2600, 2635 ("MCA"). In 2006,
with habeas jurisdiction stripped, seven petitioners be-
low sought review under the DT A. Respondents held
DT A review hostage to years of litigation over the re-
cord on review. Theoretically, petitioners (including
some Petitioners here) prevailed, see Bismullah v. Gates,
501 F.3d 178 (D.C. Cir. 2008), but the Executive never
provided even its own version of the record until Octo-
ber 29, 2007. Petitioner Huzaifa Parhat immediately
moved for DTA judgment on that limited record, and
in June, 2008, the D.C. Circuit granted judgment, or-
dering Respondents to "release Parhat, to transfer him,
or to expeditiously convene a new CSRT."8 Parhat,
532 F.3d at 851. This disposition was without preju-
dice to Parhat's right to seek release immediately
through habeas corpus. Id. at 854. "[IJn that [habeas]
proceeding there is no question but that the court will
have the power to order him released." Id. at 851.
number was assigned, Ghaffar v. Bush (08-1310), and the case was
consolidated with Kiyemba. JA 390.
7 See JA 410 (Kiyemba petitioners), 445 (Mamet), 476 (Mahnut
and Mahmud), 511 (Razakah and Tourson), 551 (Thabid and Ali),
603 (Ghaffar and Noori).
8 "CSRT" means Combatant Status Review Tribunal.
Appendix B
Page 18 of 49
7
2. Proceedings following Boumediene and Parhat
Following Boumediene, the stays in the Uighur ha-
beas cases were dissolved and the cases were consoli-
dated before District Judge Ricardo Urbina. JA 1602.
Parhat moved for release ("Release Motion"), based
upon the constitutional privilege of habeas corpus pro-
tected by the Suspension Clause, U.S. CONST. art. I,
9, cl. 2, and 28 U.S.C. 2241. JA 1106. All Petition-
ers later joined the motion. JA 1466. On August 18,
2008, in parallel DT A proceedings, Respondents con-
ceded that four more of the petitioners below (the next
four in the DTA queue) were not "enemy combatants,"
and moved for entry of the Parhat judgment in their
DTA cases. SA 1802.9 In the habeas cases, Judge Ur-
bina gave Respondents additional time to state their
position, and scheduled a hearing on the Release Mo-
tion for October 7. JA 1317. On the eve of the hearing,
Respondents conceded that none of the Uighur peti-
tioners is an enemy combatant. JA 1464-65.
Except for the conceded fact that each Petitioner is
an alien imprisoned by the U.S. at Guanbinamo, Re-
spondents offered no factual record to the district
court. As to seven Petitioners, Respondents never filed
a habeas return at al1.
10
They did file returns-in each
case only the CSR T hearing record-in seven other
9 Among these were Petitioners Jalal Jalaldin and Abdul Semet, as
well as Khalid Ali and Sabir Osman, who were petitioners below
but not here.
10 Respondents never filed habeas returns for Petitioners Abdul
Nasser, Abdul Semet, Memet, Parhat, Jalaldin, Ghaffar, or N oori.
Appendix B
Page 19 of 49
8
Uighur cases.
l1
Significantly, as to no petitioner below
did Respondents ever file a return asserting any legal
basis for executive imprisonment other than the "en-
emy combatant" status Respondents later abandoned.
Respondents never asserted, for example, that any
provision of the immigration laws supported a right to
imprison. See JA 1464-65. As the return is the only
means by which the jailer certifies "the true cause of
the detention," 28 U.S.C. 2243 (cl. 3), the pleadings
below established a conclusive right to release.
Even apart from the pleadings, no evidence was ever
offered to the district court demonstrating dangerous-
ness, involvement in terrorism, criminal activity, or
any other putative basis for detention. To the con-
trary, the record contains powerful evidence that Peti-
tioners' release would create no risk to the public. JA
1546-49; Classified Supplement.
At the hearing, the district court offered Respon-
dents a further chance, soliciting a factual proffer of
"the security risk to the United States should these
people be permitted to live here." JA 1547. The Ex-
ecutive responded, "I don't have available to me today
any particular specific analysis as to what the threats
of-from a particular individual might be if a particu-
lar individual were let loose on the street." JA 1549.
11 Petitioners Mahnut, Mahmud, Mamet, Razakah, Tourson, Ali
Mohammad, and Thabid. Respondents barred counsel from see-
ing the classified portion of the habeas return for Petitioners Mah-
nut and Mahmud. These records were filed with the district court
under seal more than three years ago. JA 113. Respondents as-
serted that it would be "burdensome" to release these materials to
counsel.
Appendix B
Page 20 of49
9
Respondents had "seven years to study this issue," JA
1547, three years' notice of these habeas cases, ten
weeks' notice of the Release Motion, and six weeks' no-
tice of the hearing date. The Executive "presented no
reliable evidence that Petitioners would pose a threat
to U.S. interests." Pet. App. 23a; JA 1611.
Efforts to resettle the Uighurs abroad had already
been underway since 2003. See Qassim v. Bush, 407 F.
Supp. 2d 198, 200 (D.D.C. 2005) (reciting failed reset-
tlement efforts). When the case came before the dis-
trict court in 2008, three more years of such efforts had
failed. "Throughout this period," the district court
found, "the Government has been engaged in 'extensive
diplomatic efforts' to resettle the petitioners" abroad.
Pet. App. 49a. "These efforts have failed for the last
four years and have no foreseeable date by which they
may succeed." Id. at 60a. See also Classified Supple-
ment. These findings were not challenged on appeal.
The district court did require detailed evidence con-
cerning the arrangements in place for release and reset-
tlement. JA 1469-1532, 1578-84. Local Uighur-
American families offered a short-term bridge to more
permanent resettlement arrangements offered by a Lu-
theran refugee group and leaders from the Tallahassee
religious community. JA 1469-70, 1474-1532, 1580-83.
A donor committed substantial financial support. JA
1583-84.
C. The Decisions Below
1. The district court's decision
Respondents argued below that continued deten-
tion of Petitioners after their concession that Petition-
Appendix B
Page 21 of49
10
ers are not enemy combatants was justified by "inher-
ent Executive authority to 'wind up' detentions in an
orderly fashion," Pet. App. 44a, and that Shaughnessy
v. United States ex rel. Mezei, 345 U.S. 206 (1953), con-
trols. Relying on Clarkv. Martinez, 543 U.S. 371
(2005), and Zadvydas v. Davis, 533 U.S. 678 (2001), the
district court correctly concluded that any "wind up"
authority had long since ceased, and further detention
had become unlawful. Pet. App. 50a.
The district court acknowledged "the power to ex-
pel or exclude aliens as a fundamental sovereign attrib-
ute exercised by the Government's political depart-
ments largely immune from judicial control," Pet. App.
53a (quoting PiaZZo v. Bell, 430 U.S. 787, 792 (1977)
(alterations omitted)), but concluded that this "does
not mean that the third branch is frozen in place." Id.
at 59a n.5. Judicial authority to issue the writ in this
case derives from "the guiding principle that personal
liberty is secured by adherence to separation of pow-
ers." Id. at 58a-59a (quoting Boumediene, 128 S. Ct. at
2277) (internal quotation marks and alterations omit-
ted). Boumediene, the district court reasoned, held
that the writ is "an indispensable mechanism for moni-
toring the separation of powers," and commanded that
"the writ must be effective." Id. at 57a-59a (citing and
quoting Boumediene at 2277, 2259, 2269). "[T]he
court's authority to safeguard an individual's liberty
from unbridled executive fiat reaches its zenith when
the Executive brings an individual involuntarily within
the court's jurisdiction, detains that individual and
then subverts diplomatic efforts to secure alternative
channels for release." Id. at 59a (citing INS v. St. Cyr,
533 U.S. 289, 301 (2001)).
Appendix B
Page 22 of49
11
Citing Hamdi for the proposition that "[w)hatever
power the United States Constitution envisions for the
Executive in its exchanges with other nations or with
enemy organizations in times of conflict, it most assur-
edly envisions a role for all three branches when indi-
vidual liberties are at stake," the district court ruled
that "the carte blanche authority the political branches
purportedly wield over [Petitioners) is not in keeping
with our system of governance." Pet. App. 60a. "The
political branches may not simply dispense with these
protections, thereby limiting the scope of habeas review
by asserting that they are using their 'best efforts' to
resettle the petitioners in another country." Id. at 59a
(citing Boumediene, 128 S. Ct. at 2259). "[O)ur system
of checks and balances is designed to preserve the fun-
damental right of liberty." Id. at 60a.
Finding that the Executive's "extensive diplomatic
efforts" to resettle Petitioners abroad had failed, and
that there was "no foreseeable date by which they may
succeed," Pet. App. 48a-49a & n.2, 59a-60a, the district
court concluded that "[Petitioners') detention has al-
ready crossed the constitutional threshold into infini-
tum," id. at 60a. The court granted the Release Mo-
tion, id., and ordered that Petitioners and the resettle-
ment providers appear on October 10 and 16, 2008, to
address appropriate release conditions ("Release Or-
der), see id. at 62a-63a (order); JA 1578-1584,1592.
Respondents immediately moved for a stay pending
appeal, which the district court denied and the court of
appeals subsequently granted. JA 1585-86; Pet. App.
65a.
Appendix B
Page 23 of49
12
2. The D.C. Circuit's decision
No Petitioner had ever sought refugee status or any
other immigration remedy, and no executive discretion
(such as the statutory discretion to parole, grant immi-
gration status, exclude, or initiate removal) had ever
been foreclosed. Nevertheless, the panel majority re-
configured Petitioners' habeas petitions into requests
for judicially imposed immigration status and reversed.
The majority began with an exegesis of immigra-
tion-law decisions concerning "the exclusive power of
the political branches to decide which aliens may, and
which aliens may not, enter the United States, and on
what terms," Pet. App. 6a, and concluded that it "'is
not within the province of any court, unless expressly
authorized by law, to review the determination of the
political branch of the Government to exclude a given
alien,'" id. at 8a (quoting United States ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 543 (1950)). The majority
rested on Mezei and Knauff, neither of which involved
a prisoner captured by the Executive and brought to
our threshold by force of arms.
The majority held that the district court erred be-
cause it "cited no statute or treaty authorizing its or-
der" and "spoke only generally" of the Constitution.
Pet. App. 8a. The Fifth Amendment Due Process
Clause, the majority held, "cannot support the court's
order of release" because "the due process clause does
not apply to aliens without property or presence in the
sovereign territory of the United States." Id. at 8a-9a.
The majority cited a series of its own pre-Boumediene
decisions, as well as this Court's decisions in Zadvydas,
533 U.S. at 693; United States v. Verdugo-Urquidez, 494
Appendix B
Page 24 of49
13
U.S. 259, 269 (1990); and Johnson v. Eisentrager, 339
U.S. 763, 783-84 (1950).
"Not every violation of a right yields a remedy,
even when the right is constitutional," the majority
said, drafting the sovereign immunity and political
question doctrines as support. Pet. App. lOa. The
maxim" Ubi ius, ibi remedium . .. cannot overcome es-
tablished law that an alien who seeks admission to this
country may not do so under any claim of right." Id.
(internal quotation marks and citations omitted).
Most telling was the majority's conclusion as to the
role of the habeas court. The judiciary, it held, had no
"power to require anything more" than the jailer's as-
surances that he was continuing efforts to find a foreign
country willing to admit Petitioners. Pet. App. 15a.
Concurring in the judgment, Judge Rogers found
the majority's analysis to be "not faithful to Boumedi-
ene." Pet. App. 22a. It "compromises both the Great
Writ as a check on arbitrary detention, effectively sus-
pending the writ contrary to the Suspension Clause,
art. 1, 9, cl. 2, and the balance of powers regarding
exclusion and admission and release of aliens into the
country recognized by the Supreme Court to reside in
the Congress, the Executive, and the habeas court." Id.
at 28a.
To reach its conclusion, Judge Rogers explained,
the majority "recast the traditional inquiry of a habeas
court from whether the Executive has shown that the
detention of the petitioners is lawful to whether the pe-
titioners can show that the habeas court is 'expressly
authorized' to order aliens brought into the United
Appendix B
Page 25 of49
14
States," and "conflate[dl the power of the Executive to
classify an alien as 'admitted' within the meaning of
the immigration statutes, and the power of the habeas
court to allow an alien physically into the country."
Pet. App. 32a-33a,12
REASONS FOR GRANTING THE PETITION
A. The Decision Below Must Be Reversed Because, In
Conflict With This Court's Precedents, It Subordi-
nates Judicial Authority To Relieve Unlawful Im-
prisonment To The Discretion Of The Political
Branches.
1. Kiyemba conflicts with Boumediene and is un-
faithful to the constitutional commands it en-
forces.
The Court held in Boumediene that Guantanamo
prisoners are "entitled to the privilege of habeas corpus
to challenge the legality of their detention," 128 S. Ct.
at 2262, and that a "habeas court must have the power
to order the conditional release of an individual unlaw-
12Judge Rogers would have remanded to permit Respondents a
further opportunity to show (as they had not alleged in any return
or shown at the habeas hearing) that the "immigration laws ...
form an alternate basis for detention." Pet. App. 22a. This the-
ory was foreclosed by the pleadings, as discussed above, and be-
cause nothing in Judge Urbina's order would have precluded the
Department of Homeland Security ("DHS"), once Petitioners
were present in the United States, from pursuing any available
statutory rights incidental to a lawful deportation process. Id. at
63a. Judge Urbina had scheduled a further, post-release hearing
to afford DHS an opportunity to be heard on conditions for re-
lease. Id. at 63a. The court of appeals stopped that process with a
stay order. Pet. App. 65a.
Appendix B
Page 26 of49
15
fully detained," id. at 2266. The district court was
faithful to that mandate. The K iyemba panel was not.
It ruled that the district court is powerless to relieve
unlawful imprisonment, even where the Executive
brought the prisoners to our threshold, imprisons them
there without legal justification, and-as seven year.s
have so poignantly proved-there is nowhere else to go.
Its ruling profoundly conflicts with Boumediene, which
unequivocally forecloses Kiyemba's analysis and result.
This warrants certiorari review.
a. Kiyemba inverts Boumediene's analysis of the
Suspension Clause as crucial to the separa-
tion of powers.
Boumediene held that the Suspension Clause has full
effect at Guantanamo, 128 S. Ct. at 2263, and that
"when the judicial power to issue habeas corpus prop-
erly is invoked the judicial officer must have adequate
authority to ... issue appropriate orders for relief, in-
cluding, if necessary, an order directing the prisoner's
release," id. at 2271.
The decision is grounded in the separation of pow-
ers. Noting that the "Framers' inherent distrust of
governmental power was the driving force behind the
constitutional plan that allocated powers among three
independent branches," the Court explained that
"[tJhis design serves not only to make Government ac-
countable but also to secure individual liberty." 128 S.
Ct. at 2246 (citing cases). "[PJrotection for the privi-
lege of habeas corpus was one of the few safeguards of
liberty specified in a Constitution that, at the outset,
had no Bill of Rights," the Court explained. Id. at
2244. "In the system conceived by the Framers the
Appendix B
Page 27 of49
16
writ had a centrality that must inform proper interpre-
tation of the Suspension Clause." Id.
Thus the Great Writ invests in the judiciary a real
check against Executive power. The Suspension
Clause "ensures that, except during periods of formal
suspension, the Judiciary will have a time-tested de-
vice, the writ, to maintain the delicate balance of gov-
ernance that is itself the surest safeguard of liberty,"
and "protects the rights of the detained by affirming
the duty and authority of the Judiciary to call the
jailer to account." 128 S. Ct. at 2247 (internal quota-
tion marks and citations omitted).
Kiyemba's remarkable inversion of the Great Writ
guaranteed by the Suspension Clause shows most ac-
utely in the majority's last sentence, stating that the
Article III judge's constitutional function is satisfied
when she receives representations from the Execu-
tive-from the jailer-that it is attempting to relieve
its own unlawful imprisonment. "Nor do we have the
power to require anything more," the majority
shrugged. Pet. App. 15a.
A habeas court certainly can do more: under the
Constitution, it is duty-bound to do more. See Harris
v. Nelson, 394 U.S. 286, 292 (1969) ("There is no higher
duty of a court, under our constitutional system, than
the careful processing and adjudication of petitions for
writs of habeas corpus . ... "); Bowen v. Johnston, 306
U.S. 19, 26 (1939) ("It must never be forgotten that
the writ of habeas corpus is the precious safeguard of
personal liberty and there is no higher duty than to
maintain it unimpaired."). By accepting the jailer's
mere assurances, the K iyemba majority abdicated that
Appendix B
Page 28 of49
17
duty, and left pitifully theoretical the question whether
the Executive had a lawful basis for imprisonment in
the first place. That is no judicial remedy.
The Kiyemba majority's taxidermy would hang
Boumediene as a trophy in the law library, impressive
but lifeless. For Kiyemba's practical result is that
while every Guantanamo prisoner enjoys the privilege
of habeas corpus, none can obtain a judicial remedy.
No sovereign except our own is subject to the orders of
our judiciary, and if our own sovereign is immune,
there is no judicial remedy in any case. To be sure, a
foreign sovereign generally and safely may accept its
own citizens, and in some cases other diplomatic ar-
rangements may be reached. But "rithout the fallback
of judicial power to order release, even imprisonments
that the Executive concedes have no legal justification
'i\rill continue at the discretion of the Executive, while
the habeas court 'i\rill be reduced to powerless irrele-
vance, required to grant plenary control over relief to
the party that failed to meet its burden and lost the
case.
Kiyemba was a profound error that directly con-
flicts with Boumediene's command that the habeas
court has the power-to be used carefully and judi-
ciously, but power nevertheless-to order release,
where as in this case, there is no other remedy 128. S.
Ct. at 2266.
Appendix B
Page 29 of49
18
b. Kiyemba's holding rests on an erroneous un-
derstanding of the Great Writ guaranteed by
the Suspension Clause.
The Kiyemba majority held that a habeas court has
no power to order release unless the prisoner demon-
strates an affirmative personal right to that remedy.
Pet. App. 8a. This ruling flatly contradicts this
Court's decisions delineating the privilege of habeas
corpus as guaranteed by the Susp,ension Clause. This
was egregious error warranting this Court's interven-
tion.
i. K iyemba erroneously placed the burden
on the prisoner to justify release, rather
than on the jailer to justify imprison-
ment.
The Great Writ is "antecedent to statute, throwing
its root deep into the genius of our common law." Ra-
sul v. Bush, 542 U.S. 466, 473 (2004) (quoting Williams
v. Kaiser, 323 U.S. 471, 484 n.2 (1945) (internal quota-
tion marks and alteration omitted)). "[AJn integral
part of our common-law heritage" at the time of the
Founding, the writ received explicit recognition in the
Suspension Clause. Rasul, 542 U.S. at 473-74 (quoting
Preiser v. Rodriguez, 411 U.S. 475, 485 (1973) (internal
quotation marks omitted)). See Boumediene, 128 S. Ct.
at 2248.
13
The core proposition of the Great Writ is
13 "[Alt the absolute minimum, the Suspension Clause protects the
writ as it existed in 1789." St. Cyr, 53 U.S. at 301 (internal quota-
tion marks and citation omitted). The Court reaffirmed this point
in Boumediene, emphasizing that "(tlhe Court has been careful not
to foreclose the possibility that the protections of the Suspension
Clause have expanded along with post-1789 developments that
Appendix B
Page 30 of49
19
that the jailer has the burden to demonstrate positive
law authorizing imprisonment; where he cannot do so,
the court must order release, and the jailer must com-
ply. Thus the writ guaranteed by the Suspension
Clause burdens the Executive, not the prisoner. This
explains why habeas cases were framed not in terms of
the petitioner's rights but of the jailer's power. "The
question is," wrote Chief Justice Marshall, "what au-
thority has the jailor to detain him?" Ex parte Burford,
7 U.S. (3 Cranch) 448, 452 (1806).
Thus has the writ always been understood, in the
centuries before the Founding, see, e.g., Paul D. Halli-
day, G. Edward White, The Suspension Clause: English
Text, Imperial Contexts, and American Implications, 94
VA. L. REV. 575, 598-600 (2008), and in this Court's
decisions, see, e.g., Boumediene, 128 S. Ct. at 2247
("The [Suspension] Clause protects the rights of the
detained by affirming the duty and authority of the
Judiciary to call the jailer to account."); Wingo v.
Wedding, 418 U.S. 461, 468 (1974) ("if the imprison-
ment cannot be shown to conform with the fundamen-
tal requirements of law, the individual is entitled to his
immediate release"); Preiser v. Rodriguez, 411 U.S. 475,
484 (1973) ("[T]he essence of habeas corpus is an attack
by a person in custody upon the legality of that cus-
define the present scope of the writ." 128 S. Ct. at 2248; see Rasul,
542 U.S. at 473; see also Jonathan L. Hafetz, The Untold Story of
Noncriminal Habeas Corpus and the 1996 Immigration Acts, 107
YALE L. J. 2509, 2517 & n.56 (June 1998) ("HAFETZ") (noting
that "although its view of habeas has evolved over time, the Su-
preme Court has never wavered from the proposition that the
Suspension Clause incorporates the common law writ of habeas
corpus as it existed in 1789") (collecting cases).
Appendix B
Page 31 of49
20
tody, and ... the traditional function of the writ is to
secure release from illegal custody. ").
The habeas privilege guaranteed by the Suspension
Clause thus "require[s] the jailer to establish with strict
precision the legal authority for holding the peti-
tioner." Jared A. Goldstein, Habeas Without Rights,
2007 WIS. L. REV. 1165, 1186 & n.107 (2007)
("GOLDSTEIN"). In turn, the jailer's authority must
be "based upon positive law, whether under the com-
mon law or statute, which clearly defines and limits the
circumstances in which detention can be authorized
and by whom." ld. at 1186 & n.108 (citing authori-
ties). Courts had no need to inquire whether the peti-
tioner's "rights" had been violated "because the only
right at issue was the right not to be imprisoned with-
out legal cause, an inquiry resolved by determining the
scope of the jailer's authority." ld. at 1187-88; see
Boumediene, 128 S. Ct. at 2247; HAFETZ at 2526 (ex-
plaining that the common-law writ required the Execu-
tive to justify detention; "that the writ's primary pur-
pose had become the protection of the liberty of indi-
viduals; and that the writ played a structural role in
limiting executive power").
The court of appeals had no need to research this
history; it is set out at length in Rasul, 542 U.S. at 473-
75, and Boumediene, 128 S. Ct. at 2244-47.
The Kiyemba majority assumed that a habeas peti-
tioner must demonstrate a personal "constitutional
right." Pet. App. 8a,14 But common-law habeas, as it
14 To be sure, the Court has sometimes described the writ as pro-
tecting a "right." See, e.g., Coolidge v. New Hampshire, 403 U.S.
Appendix B
Page 32 of49
21
was known in England and colonial America before the
Founding, and is protected by the Suspension Clause,
did not depend on "constitutional rights" which, of
course, did not exist. Boumediene, 128 S. Ct. at 2244
(the Suspension Clause predates the Bill of Rights);
GOLDSTEIN at 1182 (the concept of individual legal
rights was "in its infancy"). The "right" guaranteed
by the Great Writ and the Suspension Clause is, as au-
thorities from Blackstone to Boumediene have said, the
inviolable protection against Executive imprisonment
not expressly authorized by law: in short, the "right"
to call the Executive to account and obtain a judicial
remedy where the Executive cannot demonstrate a le-
gal basis for the imprisonment. See 3 WILLIAM
BLACKSTONE, COMMENTARIES ON THE LAW OF
ENGLAND *133 (liberty is a "natural inherent right"
which ought not "be abridged in any case without the
special permission of law"); Ex parte Yerger, 75 U.S. (8
Wall) 85, 95 (1868) (describing the writ as "the best
and only sufficient defence of personal freedom");
Boumediene, 128 S. Ct. at 2244-47; GOLDSTEIN at n.16
(citing Rollin C. Hurd, A TREATISE ON THE RIGHT OF
PERSONAL LIBERTY AND ON THE WRIT OF HABEAS
CORPUS 143 (1858)).
The district court enforced the habeas privilege
guaranteed by the Suspension Clause, as affirmed in
Boumediene. The Kiyemba majority's inversion of the
443, 454 nA (1971) (habeas is among the rights "to be regarded as
of the very essence of constitutional liberty") (internal citation
omitted); Carafas v. LaVallee, 391 U.S. 234, 238 (1968) (habeas
corpus is "shaped to guarantee the most fundamental of all
rights").
Appendix B
Page 33 of49
22
burdens imposed by the Great Writ guaranteed by the
Suspension Clause is error requiring certiorari review.
ii. The law of habeas guarantees and requires
release in these circumstances, where no
other remedy is available.
The writ secures release, not the jailer's blandish-
ment. See, e.g., Wilkinson v. Dotson, 544 U.S. 74, 79
(2005) (release "He[s] ... 'within the core of habeas cor-
pus"') (quoting Preiser, 411 U.S. at 487); St. Gyr, 533
U.S. at 301 ("[t]he historic purpose of the writ has been
to relieve detention by executive authorities without
judicial trial") (quoting Brown v. Allen, 344 U.S. 443,
533 (1953)); Wingo, 418 U.S. at 468 ("the 'great consti-
tutional privilege' of habeas corpus has historically pro-
vided a prompt and efficacious remedy for whatever
society deems to be intolerable restraints") (internal
citation omitted)); Garbo v. United States, 364 U.S. 611,
618 (1961) (the writ is "designed to relieve an individ-
ual from oppressive confinement"); Price v. Johnston,
334 U.S. 266, 283 (1948) (The writ "afford[s] a swift
and imperative remedy in all cases of illegal restraint
upon personal liberty."); Ex parte Bollman, 8 U.S. (4
Cranch) 75, 136 (1807) (a habeas court that finds im-
prisonment unlawful "can only direct [the prisoner] to
be discharged"); THE FEDERALIST No. 84 at 629
(Alexander Hamilton) (John C. Hamilton ed. 1869)
(describing habeas as "a remedy for [the] fatal evil" of
"arbitrary imprisonment").
Accordingly, Boumediene held that a "habeas court
must have the power to order the conditional release of
an individual unlawfully detained." 128 S. Ct. at 2266
(citing cases and authorities). In habeas, "uncondi-
Appendix B
Page 34 of49
23
tional release" refers to the prisoners' "unconditional
discharge from custody." FEDERAL HABEAS CORPUS
PRACTICE AND PROCEDURE 33.1 (citing Ex parte
Frederich, 149 U.S. 70, 77-78 (1893); In re Medley, 134
U.S. 160, 173 (1890) ("under the writ of habeas corpus
we cannot do anything else than discharge the prisoner
from wrongful confinement")). "Conditional release"
requires the jailer either to release the prisoner from
custody or to retry (or re-sentence) the prisoner in a
constitutional manner within a reasonable period of
time. See, e.g., Richmond v. Lewis, 506 U.S. 40, 52
(1992) (remanding "with instructions ... to enter an
order granting the petition for a writ of habeas corpus
unless the State ... within a reasonable period of time
either corrects the constitutional error in petitioner's
death sentence or vacates the sentence and imposes a
lesser sentence consistent with law"); Whiteley v. War-
den, 401 U.S. 560, 569 (1971) (remanding with "direc-
tions that the writ is to issue unless the State makes
appropriate arrangements to retry the prisoner"). If
there is no retrial foUowing a conditional release order,
the habeas court must order the immediate discharge of
the prisoner. See Wilkinson, 544 U.S. at 87 ("Condi-
tional writs enable habeas courts to give States time to
replace an invalid judgment with a valid one, and the
consequence when they fail to do so is always release.")
(Scalia, J., concurring). In this case, there is no consti-
tutional alternative to release.
Thus the question presented is not whether every
wrong has a judicial remedy, as the Kiyemba majority
argued. Pet. App. lOa. This Court has already held
that imprisonment the Executive cannot show to be
authorized by law is a particular wrong that does have
Appendix B
Page 35 of49
24
a remedy, and that remedy is release. The precise con-
tours of release in any given case is a question for the
judiciary, although the judicial branch will, of course,
exercise its powers in a way that respects the political
branches. The district court did just that here, order-
ing the least intrusive remedy that could be fashioned
to end the imprisonment.
15
CJ. HAFETZ at 2529-30
(explaining that common-law habeas "involved broader
judicial review where it presented the last resort for an
individual facing a loss of liberty" or where a petitioner
lacked any other remedy). Boumediene requires that
such a remedy be implemented, 128 S. Ct. at 2271
(where imprisonment is unlawful, "the judicial officer
must have adequate authority to ... formulate and is-
sue appropriate orders for relief, including, if necessary,
an order directing the prisoner's release"), and
promptly, id. at 2275.
2. Kiyemba's holding that immigration laws bar
habeas relief would effect an unconstitutional
suspension of the writ and conflicts with the
Court's precedents.
To posit that the Release Order intruded on Execu-
tive power, the Kiyemba majority had to recast the
case from one in which Petitioners ask for relief from
unilateral Executive acts-capture, transportation,
and long imprisonment-into a request for a judicial
immigration order. Petitioners, the majority said, were
"alien[s] who seek[] admission to this country." Pet.
15 The district court was unable to complete the process of assess-
ing the appropriateness of any conditions because the court of ap-
peals stayed the proceeding at Respondents' request. Pet. App.
65a.
Appendix B
Page 36 of49
25
App. lOa. This recharacterization permitted the ma-
jority to invoke the principle that the political
branches have discretion over immigration matters,
citing decisions in which courts defer to immigration
policy choices made by Congress and the Executive's
enforcement of those policies. Id. at 6a-8a. But it has
no basis in the record in this case, and the analysis it
spawned conflicts with this Court's precedents.
First, the immigration laws have not been triggered
in this case. Petitioners never applied for immigration
status. They did not bring themselves to the border.
They bear no responsibility for their dilemma.
Whether the immigration laws give the Executive dis-
cretion over the immigration status of Petitioners is
beside the point-at issue here is imprisonment.
Respondents never pointed (in a habeas return, or
otherwise) to an immigration law that justifies impris-
onment, and there is none.
16
The district judge under-
stood that his Release Order neither granted an immi-
gration remedy nor limited the Executive's ability to
impose one (such as, for example, deportation) once the
men were released here.
16 The record below would not support detention under any immi-
gration statute. See, e.g., 8 U.S.C. 1182(a)(3)(B) (barring the
admission of aliens who, among other things, "prepare or plan a
terrorist activity" or receive "military-type training" from a "terror-
ist organization"); 8 U.S.C. 1226a(a)(6) (authorizing indefinite
detentions of only those aliens who pose a threat to national secu-
rity). And the Release Order did not foreclose the Executive from
pursuing any immigration rights it might have once Petitioners
were physically present in the United States.
Appendix B
Page 37 of49
26
Second, even if the immigration laws had been trig-
gered, the Suspension Clause must trump the power of
the political branches in the Guantanamo cases, or
Boumediene was no more than a suggestion. By design,
the Suspension Clause and the habeas privilege it pro-
tects check the political branches, barring unlawful Ex-
ecutive detention and suspension of habeas absent a
formal suspension of the writ under the conditions pre-
scribed in the text of the Suspension Clause. Boumedi-
ene, 128 S. Ct. at 2247. Accordingly, Boumediene held
that the Suspension Clause trumped statutes-the
DTA and the MCA-nacted by Congress to deprive
Petitioners of the protections of the Great Writ. Id.
The Suspension Clause may not be eluded by
thumbing to a different act of Congress. What was
true for the DTA and the MCA is as true for any other
statute. Interpreting the immigration laws or the im-
migration powers of the political branches to bar a
remedy in habeas where no law authorizes executive de-
tention would effect the same suspension of the writ
that this Court found unconstitutional in Boumediene.
See also St. Cyr, 533 U.S. at 300-05; INS v. Chadha, 462
U.S. 919, 943 (1983) ("Resolution of litigation chal-
lenging the constitutional authority of one of the three
branches cannot be evaded by courts because the issues
have political implications .... "); HAFETZ at 2521
("If, as the Court has maintained, constitutional ha-
beas must be defined by referring to the writ at com-
mon law, Congress, however plenary its power over
immigration, cannot gut the writ of its common law
core without violating the Suspension Clause.").
Appendix B
Page 38 of49
27
Third, under this Court's precedents the right to re-
lease-even of concededly undocumented aliens-has
trumped the powers of the political branches over im-
migration, even statutory detention powers related to a
legitimate interest in deportation. Zadvydas, 533 U.S.
at 689. In Martinez, 543 U.S. at 386, the Court ex-
tended this proposition to aliens who, like Petitioners,
had never made an entry under the immigration laws
(and who, unlike Petitioners, were adjudicated crimi-
nals). Thus Martinez permitted only a presumptive
six-month detention beyond the 90 days for aliens in-
admissible under section 1182. See 543 U.S. at 386; 8
U.S.C. 1226a(a)(6) ("[lJimitation on indefinite deten-
tion"). Once removal is no longer "reasonably foresee-
able," as happened years ago in these cases, the Execu-
tive must release the alien. Martinez, 543 U.S. at 377-
78; Zadvydas, 533 U.S. at 701.
Martinez rejected the same statutory, security, and
separation-of-powers theories the Executive raised here
and the Kiyemba majority adopted. 543 U.S. at 385-
86. In both Zadvydas and Martinez, the Court ordered
the release into the United States of aliens who had no
legal entitlement to be here, based on constitutional
concerns. The central constitutional principle is that
no statute can be read to permit indefinite imprison-
ment--ven if it deals with alien criminals and on its
face authorizes their indefinite imprisonment. This
rule applies in cases-like Martinez itself-where there
actually is a record of prior criminal activity or other
risk factors.17
17 Courts applying Martinez have reached the same result. See,
e.g., Tran v. Mukasey, 515 F.3d 478, 485 (5th Cir. 2008) (public-
Appendix B
Page 39 of49
28
Release into the United States of an alien without
immigration status poses logistical difficulties, to be
sure, but such difficulties are nothing new (as Martinez
shows), and here they are entirely of the Executive's
mVll making. The district court scheduled hearings to
address precisely those logistics. The burden of such
difficulties, whatever it may be, must be borne by the
Executive, and no longer by Petitioners. Boumediene,
128 S. Ct. at 2275 ("the costs of delay can no longer be
borne by those who are held in custody").
3. Mezei does not support Kiyemba.
The Kiyemba majority relied on Mezei, the 5-4 Cold
War decision that stranded suspected communist Ig-
natz Mezei at Ellis Island. Mezei was an immigration
case, and this case emphatically is not. Mezei left the
U.S. voluntarily, returned voluntarily, and sought, at
least initially, an immigration remedy: admission. 345
U.S. at 207,18 He was temporarily excluded by an im-
migration inspector and then permanently excluded by
the Attorney General. 345 U.S. at 208. His habeas pe-
safety concerns do not justify continued detention); Nadarajah v.
Gonzales, 443 F.3d 1069, 1083-84 (9th Cir. 2006) (alien released
from five-year detention despite security-risk argument); Hernan-
dez-Carrera v. Caru,on, 546 F. Supp. 2d 1185, 1190-91 (D. Kan.
2008) (further detention of mentally ill aliens with history of vio-
lence not permitted); see au,o Hussain v. Mukasey, 518 F.3d 534,
539 (7th Cir. 2008) (alien found to have engaged in terrorist ac-
tivities under 8 U.S.C. 1182 releasable in six months).
18 Justice Clark's majority opinion strained to avoid characteriz-
ing Mezei's condition as "detention," and that is one way to har-
monize the case with Boumediene. See, e.g., Mezei, 345 U.S. at 207,
213 (describing Mezei's situation as "harborage," "temporary ha-
ven," and "exclusion").
Appendix B
Page 40 of49
29
tition was a collateral attack on an exclusion order-
i.e., an order issued under the Executive's delegated
powers over immigration matters. This Court granted
certiorari "[b ]ecause of resultant serious problems in
the enforcement of the immigration laws." Id. The
government's concern was that foreign enemies might
dump "volunteers" on our doorstep, and when the
ships sailed past the horizon, the Executive would be
forced to open its doors. Id. at 216. That concern does
not arise where the Executive paid bounty hunters in
Pakistan, shackled prisoners, and rendered them to
Guantanamo, thus creating a population that is here
only because the Executive brought it here. M ezei does
not hold that the Executive is shielded from dilemmas
of its own making.
Moreover, whereas Petitioners' detention has no
basis in law, Mezei's exclusion was expressly author-
ized by statute. 345 U.S. at 210-11 (quoting statutes);
see also Knauff, 338 U.S. at 540-42 (same); id. at 546
(no power to retry Attorney General's determination to
exclude petitioner without a hearing "during the [pre-
sent] national emergency"). And unlike the Attorney
General in Mezei, DHS has not made any determina-
tion concerning Petitioners' immigration status be-
cause Petitioners have not sought that relief.
Whatever it may have stood for during the Cold
War, Mezei has not survived Boumediene's holding that
a person captured by the Executive, brought to
Guantanamo, and held in indefinite detention may
Appendix B
Page 41 of49
30
seek a remedy in habeas, and that the habeas court
must have the power to order release.
19
B. Petitioners' Statutory Habeas Rights Provide Sepa-
rate Grounds For Reversal Of Kiyemba.
The Kiyemba majority held that a habeas court has
no power to grant release unless the prisoner demon-
strates an affirmative individual right to release under
a statute, treaty, or the Constitution. Pet. App. 8a.
As shown above, this conclusion conflicts with Boume-
diene and numerous other precedents of this Court il-
luminating Petitioners' right to release under the Great
Writ guaranteed by the Suspension Clause. Reversal
does not required the Court to reach other parts of the
Constitution or treaties of the United States. Never-
theless, Petitioners' rights thereunder provide separate
grounds for reversal, and the Kiyemba majority's con-
trary holding thus also warrants certiorari review.
1. Petitioners are protected by statutory habeas.
28 U.S.C. 2241 gives "the Supreme Court, any
justice thereof, the district courts and any circuit judge
within their respective jurisdictions" the "[p lower to
grant [the 1 writ," to prisoners "in custody in violation
of the Constitution or laws or treaties of the United
States." 28 U.S.C. 2241(a),(c)(3), and title.
In Rasul, the Court held that statutory habeas ex-
tends to Guantanamo prisoners, 542 U.S. at 481, and
stated that the prisoners' allegations that they are held
19 Reversal of Kiyemba requires not that Mezei be "overruled," but
only that this Court follow subsequent decisions of the same Court
that decided it.
Appendix B
Page 42 of49
31
in violation of the laws of the United States "unques-
tionably describe 'custody in violation of the Constitu-
tion or laws or treaties of the United States,'" id. at 483
n.15 (quoting section 2241). Section 7 of the MCA
("MCA 7") eliminated statutory habeas for
Guantanamoprisoners "who halve] been determined
by the United States to have been properly detained as
an enemy combatant. "20
Boumediene held that the DT A was not an adequate
substitute for habeas and that MCA 7 unconstitu-
tionally effected a suspension of the writ. 128 S. Ct. at
2274. Accordingly, MCA 7 is void. Id. at 2266 (stat-
ing that section 2241 "would govern in MCA 7's ab-
sence"). Petitioners' statutory habeas rights survive
and afford Petitioners an affirmative right of relief un-
der a U.S. statute.
a. Petitioners' imprisonment violates the Fifth
Amendment Due Process Clause.
The Kiyemba majority held that "the due process
clause does not apply to aliens without property or
presence in the sovereign territory of the United
States," citing its pre-Boumediene decisions, and this
Court's pre-Boumediene decisions in Verdugo-Urquidez,
494 U.S. at 269, and Eisentrager, 339 U.S. at 783-84,
20 The quoted text shows that MCA 7 would not have applied to
Petitioners. MCA 7 purported to eliminate jurisdiction to con-
sider the habeas petition of an alien "properly detained as an enemy
combatant." Respondents have expressly conceded that Petition-
ers are not enemy combatants, a determination ratified by the
district court, and the court of appeals also has formally vacated
the enemy-combatant classification as to five Uighur petitioners.
JA 1464-65.
Appendix B
Page 43 of49
32
upon which its own decisions had relied. This was er-
ror.
In Verdugo-Urquidez, the majority cited Eisen-
trager's "emphatic rejection" of the extraterritorial ap-
plication of the Fifth Amendment in holding that the
Fourth Amendment's text and history, "and our cases
discussing the application of the Constitution to aliens
and extraterritoriality require" the conclusion that the
Fourth Amendment does not apply to a citizen and
resident of Mexico "with no voluntary attachment to
the United States and the place searched was Mexico."
494 U.S. at 274-75. Justice Kennedy concurred in the
judgment, but his analysis of the extraterritoriality is-
sue was quite different. Relying on In re Ross, 140 U.S.
453 (1891), the Insular Cases, and Justice Harlan's
concurrence in Reid v. Covert, 354 U.S. 1, 74 (1957), he
concluded:
The conditions and considerations of this case
would make adherence to the Fourth Amend-
ment's warrant requirement impracticable and
anomalous. Just as the Constitution in the In-
sular Cases did not require Congress to imple-
ment all constitutional guarantees in its territo-
ries because of their wholly dissimilar traditions
and institutions, the Constitution does not re-
quire United States agents to obtain a warrant
when searching the foreign home of a nonresi-
dent alien.
Verdugo-Urquidez, 494 U.S. at 278 (Kennedy, J. con-
curring) (internal quotation marks and citation omit-
ted).
Appendix B
Page 44 of49
33
The Court rejected Eisentrager's geographic formal-
ism, and that of the Verdugo-Urquidez majority, in Ra-
sul and again in Boumediene. Citing with approval
Justice Kennedy's concurrence in Rasul (which, in
turn, cited Justice Kennedy's concurrence in Verdugo-
Urquidez), the Court in Boumediene applied a func-
tional test in determining that the Suspension Clause
restrains the Executive's conduct as to Guantanamo
detainees. 128 S. Ct. at 2261-62. Thus, the Court has
already rejected the D.C. Circuit's bright-line test and
held that neither their citizenship nor their incarcera-
tion at Guantanamo deprives these prisoners of consti-
tutional rights. Id. at 2262.
Although Boumediene's holding addresses only the
Suspension Clause, application of its functional test
leads inevitably to recognition of a due process liberty
right for Guantanamo detainees, at least to the extent
of the right to be relieved of unlawful imprisonment.
Nothing about Guantanamo makes enforcement of a
due process liberty right any more "impracticable and
anomalous" than enforcement of habeas. 128 S. Ct. at
2255. The Court has repeatedly emphasized that the
core purpose of the Due Process Clause is to protect
against unlawful detention, whatever the context. See,
e.g., Zadvydas, 533 U.S. at 690; Foucha v. Louisiana,
504 U.S. 71, 80 (1992); see also United States v. Salerno,
481 U.S. 739, 755 (1987). Accordingly, the Due Proc-
ess Clause of the Fifth Amendment is sufficient to ac-
cord to noncombatants like Petitioners a positive right
of release.
Appendix B
Page 45 of49
34
b. Petitioners' indefinite imprisonment violates
the Geneva Conventions.
Petitioners contended below and continue to assert
that their continued imprisonment after the Executive
conceded that they are not enemy combatants violates
rights personal to them under treaties of the United
States-the Third Geneva Convention arts. 3, 118, 6
U.S.T. 3316, and Fourth Geneva Convention arts. 3,
132-35, 6 U.S.T. 3516-rights whose private vindica-
tion Congress provided for in 28 U.S.C. 2241(c). Re-
spondents' violation of these custodial treaty provi-
sions thus constitutes a sufficient and independent ba-
sis for the Release Order. See Mali v. Keeper of the
Common Jail of Hudson County, New Jersey, 120 U.S.
1, 12 & 17 (1887) (holding that because a "treaty is
part of the supreme law of the United States," the
power to issue writs of habeas corpus extends to prison-
ers held in violation of existing treaties).
C. Judicial Economy And The Surpassing Importance
Of The Question Presented Require The Court's
Immediate Intervention.
President Obama has ordered the closure of the
Guantanamo prison. Perhaps it will close. Recent
press accounts have suggested that the Executive may
be considering consensual release of some of the
Uighurs to the United States. Neither possibility con-
stitutes grounds for withholding a judicial remedy or a
basis to delay certiorari review.
In a constitutional sense, the President's discretion-
ary release of a prisoner is no different from his discre-
tionary imprisonment: each proceeds from his un-
Appendix B
Page 46 of49
35
checked power. The question presented here is whether
the Third Branch may check the Second at all. If ha-
beas review may be shelved because one President may
some day undo what his predecessor did, then the law
is whatever the sitting President says it is, and the ju-
diciary is the handmaiden of the political branches.
Habeas and the separation of powers cannot wait for
politics. Without the Court's intervention now, in this
case, six years of excruciating appellate litigation will
end with the evisceration of the Great Writ, and the
separation of powers will be reduced to quaint history.
All relief would hereafter be diplomatic, and located
entirely and completely within the discretion of the
jailer himself.
The Executive has argued in recent filings that ha-
beas proceedings brought by prisoners approved for
transfer should be stayed because, after Kiyemba, no
court can relieve a Guantanamo detainee's imprison-
ment.
21
Thus this case profoundly affects not only Pe-
titioners, but the hundreds of other Guantanamo pris-
oners whose habeas cases are now pending. See Massa-
chusetts Trs. of E. Gas & Fuel Assocs. v. United States,
377 U.S. 235, 237 (1964) (granting certiorari, in part,
"[bJecause a considerable number of suits are pending
in the lower courts which will turn on resolution of
these issues"). Indeed, this case affects all prisoners in
off-shore Executive prisons now and in future.
At stake is whether Boumediene is a landmark or a
curiosity that, after long years, established the habeas
prisoner's right to a learned essay. Petitioners believe
21 See note 2, supra.
Appendix B
Page 47 of 49
36
Boumediene did affirm habeas corpus as the Third
Branch's effective check of the Second. It will not be
so unless certiorari is granted.
CONCLUSION
For the foregoing reasons, the Court should grant
the petition for a writ of certiorari.
Eric A. Tirschwell
Michael 1. Sternhell
Darren LaVerne
Seema Saifee
KRAMER LEVIN NAFTALlS
& FRANKEL LLP
1177 Avenue of the Americas
New York, New York 10036
Elizabeth P. Gilson
383 Orange Street
New Haven, CT 06511
J. Wells Dixon
CENTER FOR
CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, New York 10012
Angela C. Vigil
BAKER & MCKENZIE LLP
Mellon Financial Center
1111 Brickell Ave., Ste. 1700
Miami, Florida 33131
Respectfully submitted,
Sabin Willett
Counsel of Record
Rheba Rutkowski
Neil McGaraghan
Jason S. Pinney
BINGHAM MCCUTCHEN LLP
One Federal Street
Boston, MA 02110
(617) 951-8000
Susan Baker Manning
BINGHAM MCCUTCHEN LLP
2020 K Street, N.W.
Washington, D.C. 20036
(202) 373-6000
George Clarke
MILLER & CHEV AllER CHTD
655 15th St., N.W., Ste. 900
Washington, D.C. 20005
Counsel to Petitioners
Appendix B
Page 48 of49
37
Dated: April 3, 2009
Appendix B
Page 49 of49
No. 08-1234
the iourt of the
JAMAL KIYEMBA, et aZ.,
Petitioners,
v.
BARACKH. OBAMA, et aZ.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUlYIBIA
AMICUS CURIAE BRIEF OF THE FEDERAL
PUBLIC DEFENDER FOR THE DISTRICT
COURT OF OREGON IN SUPPORT OF
PETITIONERS
STEVENT. WAX
Federal Public Defender
STEPHEN R. SADY*
Chief Deputy Federal Public Defender
*CounseZ of Record
101 SW Main Street, Suite 1700
Portland, Oregon 97204
(503) 326-2123
Counsel for Amicus Curiae
Appendix C
Page 1 of23
Table of Contents
Page
Table of Authorities ........................ ill
Identity and Interest of Amicus Curiae ... . . . . .. 1
Reasons for Granting the Writ of Certiorari ..... 3
1. This Court Should Grant Certiorari
Because The Court Of Appeals Failed To
Interpret The AUMF's Implied Power To
Detain To Include Judicial Authority To
Order Conditional Release Of Wrongfully
Held Prisoners As Required By the
Reasoning of Hamdi, Zadvydas, And
Martinez . ........................... 3
A. The Kiyemba Court Vacated Post-
Boumediene Orders Of Conditional
Release By Making Constitutional
Rulings The Court Of Appeals
Should Have Avoided. . . . . . . . . . . .. 4
B. Under Zadvydas And Martinez,
The Kiyemba Court Should Have
First Construed The AUMF To
Avoid Serious Constitutional
Problems By Finding Statutory
Authority For The Orders Of
Conditional Release . . . . . . . .. . . . .. 5
1
Appendix C
Page 2 of23
C. In Addition To The Canon Of
Constitutional Avoidance, Other
Rules Of Statutory Construction
Support Interpretation Of The
AUMF As Authorizing The
Conditional Release Orders . . . . . . .. 9
II. This Court Should Grant Certiorari To
Protect The Integrity Of Its Precedent
Because, In Violation Of The Principles
Of Stare Decisis, The Lower Court
Implicitly Overruled Rasul And
Disregarded The Retroactivity Ruling Of
Hamdan ........................... 11
III. This Court Should Summarily Grant
Certiorari, Vacate The Circuit Court
Ruling, And Reinstate The District Court
Order Of Conditional Release In Order
To Vindicate The Speedy Relief Required
By Statutory And Constitutional Habeas
Corpus ............................. 14
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 16
11
Appendix C
Page 3 of23
Table of Authorities
Page
FEDERAL CASES
Agostini v. Felton,
521 U.S. 203 (1997) .................. 13
Al Odah v. United States,
321 F.3d 1134 (D.C. Cir. 2003) . . . . . .. 11, 12
Boumediene v. Bush,
128 S. Ct. 2229 (2008) ........... 4, 15, 16
Cara/as v. LaVallee,
391 U.S. 234 (1968) .................. 15
Clark v. Martinez,
543 U.S. 371 (2005) ....... 2, 3, 5, 6, 7, 8, 9
Ex parte Endo,
323 U.S. 283 (1944) .................. 10
Hamdan v. Rums/eld,
415 F.3d 33 (D.C. Cir. 2005) ........ , 11, 14
Hamdan v. Rums/eld,
548 U.S. 557 (2006) .................. 14
Hamdi v. Rums/eld,
542 U.S. 507 (2004) .............. 3,4, 10
Johnson v. Eisentrager,
339 U.S. 763 (1950) .................. 11
ill
Appendix C
Page 4 of23
Kiyemba v. Obama,
555 F.3d 1022 (D.C. Cil:. 2009) ....... passim
Rasul v. Bush,
542 U.S. 466 (2004) ....... 11, 12, 13, 14, 15
Schlup v. Delo,
513 U.S. 298 (1995) .................. 15
Stack v. Boyle,
342 U.S. 1 (1951) .................... 15
Storti v. Massachusetts,
183 U.S. 138 (1901) .................. 15
Texas & P. Railway Co. v. Rigsby,
241 U.S. 33 (1916) .................... 9
Wardius v. Oregon,
412U.S.470(1973) .................. 10
Zadvydas v. Davis,
533 U.S. 678 (2001) 2,3,5,6,7,8
DOCKETED CASES
Basardh v. Obama,
Civil No. 05-889 (ESH) . . . . . . . . . . . . . . . .. 1
Ginco v. Obama,
Civil No. 05-1310 (RJL) ................ 1
IV
Appendix C
Page 5 of23
FEDERAL STATUTES
Authorization for the Use of Military Force . passim
8 U.S.C. 1231(a) .......................... 6
18 U.S.C. 3006A . . . . . . . . . . . . . . . . . . . . . . . . .. 1
28 U.S.C. 2241
28 U.S.C. 2243
v
12, 15
14, 16
Appendix C
Page 60f23
Identity and Interest of Amicus Curiae
The Oregon Federal Public Defender provides
indigent criminal defense pursuant to authority
conferred by 18 U.S.C. 3006A. Pursuant to
appointment orders by the United States District
Court for the District of Columbia, this office has
represented seven prisoners at the United States
Naval Station in Guantanamo, Cuba. Because two
men still detained in Guantanamo and represented by
this office cannot safely return to their countries of
origin, they are directly and adversely affected by the
decision in Kiyemba v. Obama, 555 F.3d 1022 (D.C.
Cir. 2009).1 In Basardh v. Obama, Civil No. 05-889
(ESH), the Honorable Ellen S. Huvelle granted the
writ of habeas corpus on March 31, 2009, but found
that Kiyemba limited her ability to effectuate a
remedy.2 In Cinco v. Obama, Civil No. 05-1310 (RJL),
the petitioner's claims are pending that, as a victim of
Taliban torture and a voluntary witness to enemy
human rights violations, he is not an enemy combatant
under any reasonable definition of the term, as
elaborated in previous filings with this Court in In re
Abdul Rahim Abdul Razak Al Cinco, 07-10553
1 No counsel for a party authored this brief, and no such
counselor party made a monetary contribution to its filing.
2 In the memorandum opinion, Judge Huvelle stated, "The
Court, however, must deny petitioner's request that he be released
or be transported to a safe haven in light of Kiyemba v. Obama,
555 F.3d at 1024." Basardh v. Obama, Civil No. 05-889 (ESH)
(filed April 15, 2009) at 11.
1
Appendix C
Page 7 of23
(petition for Mandamus filed April 21, 2008).3
Kiyemba affects the available remedy in both men's
habeas corpus litigation.
Under Supreme Court Rule 37.1, amicus curiae
seeks to bring to this COUlt's attention the
construction of the Authorization for the Use of
Military Force (AUMF) that would include
interpretation of the detention power to confer on the
Judiciary the authority to order conditional release in
the United States of those unlawfully detained where
the reasonably necessary time for repatriation has
elapsed. This construction is squarely within the
Question Presented, and the petition directs the
Court's attention to the controlling precedent of
Zadvydas v. Davis, 533 U.S. 678 (2001), and Clark v.
Martinez, 543 U.S. 371 (2005). Petition at 27-28. This
brief elaborates on the manner in which the AUMF is
susceptible to construction to avoid serious
constitutional problems, the stare decisis interests
compromised by Kiyemba, and the bases in habeas
corpus law for summary grant of relief.
4
3 The mandamus litigation in this Court sought to lift the
indefinite stay of over two years of a summary judgment motion
in the District Court habeas corpus case and the indefinite delay
of his motion for e:ll.lledited relief in the Detainee Treatment Act
case in the Court of Appeals. This Court denied the petition on
June 16, 2008.
4 The parties' counsel of record received timely notice of
the intent to file this brief under Rule 37.2(a) and granted
consent.
2
Appendix C
Page 8 of23
REASONS FOR GRANTING THE WRIT OF
CERTIORARI
I. This Court Should Grant Certiorari
Because The Court Of Appeals Failed To
Interpret The AUMF's Implied Power To
Detain To Include Judicial Authority To
Order Conditional Release Of Wrongfully
Held Prisoners As Required By the
Reasoning of Hamdi, Zadvydas, And
Martinez.
The AUMF provides the only source of authority
to detain Guantanamo prisoners and limits that
authority to what is "necessary and appropriate" and
"in order to prevent" future terrorist attacks:
[The President is authorized] to use all
necessary and appropriate force against
those nations, organizations, or persons
he determines planned, authorized,
committed, or aided the terrorist attacks
that have occurred on September 11,
2001, or harbored such organizations or
persons, in order to prevent any future
acts of international terrorism against
the United States by such nations,
organizations, or persons.
AUMF, 2(a), 115 Stat. 224, note following 50 U.S.C.
1541 (2000 ed., Supp. V). Although the statute
includes no express detention authority, this Court's
plurality decision in Hamdi v. Rumsfeld, 542 U.S. 507
(2004), found implicit authority for detention by
3
Appendix C
Page 90f23
incorporating that aspect ofthe law of war, addressing
the question only in the limited context of an enemy
fighter seized during an international armed conflict.
Just as there is implicit authority to detain, this Court
should find implicit authority to conditionally release
into this Country persons found to be unlawfully
detained in Guantanamo who cannot be repatriated
within a reasonable time. .
A. The Kiyemba Court Vacated Post-
Boumediene Orders Of Conditional
Release By Making Constitutional
Rulings The Court Of Appeals Should
Have Avoided.
The Hamdi plurality limited the detention
authority conferred by the AUMF to its rationale -
preventing return to the battlefield. 542 U.S. at 518-
19.
5
In Boumediene v. Bush, this Court identified two
responsibilities of the habeas corpus court: to
determine whether the detention in a specific case is
lawful, which in this context means authorized by the
AUMF; and "to order the conditional release of an
individual unlawfully detained." 128 S.Ct. 2229,2266
(2008). Despite this language, the Court of Appeals in
Kiyemba vacated the District Court's grant of
5 The government recently abandoned any claim that its
authority to detain persons in Guantanamo has any source other
than the AUMF. Press Release, Department of Justice,
Department of Justice Withdraws "Enemy Combatant" Definition
for Guantanamo Detainees (March 13, 2009) ("The definition does
not rely on the President's authority as Commander-in-Chief
independent of Congress's specific authorization.").
4
Appendix C
Page 10 of23
conditional release into the United States for Uighur
detainees who the courts had determined were
unlawfully detained.
The Kiyemba ruling was based on three
controversial predicates: no statute allowed for
conditional release; the Due Process Clause does not
apply to aliens held in Guantanamo; and the
availability of habeas corpus does not imply the
availability of meaningful relief. In permitting the
indefinite detention of unlawfully held Guantanamo
detainees, the Kiyemba court made broad rulings in
contentious areas of constitutional law: that aliens
held in violation of statute, on territory over which the
United States exercises exclusive jurisdiction and
control, can be indefinitely detained - or, for that
matter, tortured and summarily executed - without
offending the Due Process Clause; and that statutory
and constitutional habeas corpus do not incorporate
authority to order release from custody. By reaching
these serious constitutional issues, the Court of
Appeals failed to adhere to rules of statutory
construction by which theAUMF should be interpreted
to avoid making any constitutional ruling.
B. Under Zadvydas And Martinez, The
Kiyemba Court Should Have First
Construed The AUMF To Avoid Serious
Constitutional Problems By Finding
Statutory Authority For The Orders Of
Conditional Release.
Both Zadvydas and Martinez provide governing
precedent for the proposition that the Kiyemba court
5
Appendix C
Page 11 of23
should have avoided the difficult constitutional issues
by finding that the AUMF confers judicial authority to
grant relief in the form of conditional release into the
United States. Zadvydas and Martinez involved 8
U.S.C. 1231(a), an immigration statute that, on its
face, could be found to allow for indefinite detention of
criminal aliens who were either deportable
(removable) or excludable (inadmissible and
removable), but could not actually be sent home. The
statute required removal within 90 days of the final
order, but did not address the problem of aliens who
could not be repatriated. The government claimed in
Zadvydas that indefinite detention was approved for
aliens who entered the United States, committed a
crime and served the sentence, but could not be
deported because the home country was not safe.
As a cardinal principle of statutory
interpretation, the Court in Zadvydas required, as a
first step, construction ofthe detention statute to avoid
difficult constitutional questions. 533 U.S. at 689. The
Court recognized that a statute permitting indefinite
detention of aliens might be unconstitutional:
"Freedom from imprisonment - from government
custody, detention, or other forms of physical restraint
-lies at the heart of the liberty that [the Due Process]
Clause protects." Zadvydas, 533 U.S. at 690. To avoid
deciding what due process liberty interests were
implicated by indefinite detention of criminal aliens,
the Court interpreted the statute to limit the duration
of detention to as long as "reasonably necessary" to
accomplish the purpose of detention. The Court found
that, beyond six months, the purpose of detention -
removal from the United States - was not being
6
Appendix C
Page 12 of23
accomplished, so the statute required that the alien be
conditionally released in the United States. Zadvydas,
533 U.S. at 701.
In Kiyemba, the court failed to look first to the
AUMF, the statute upon which the detention was
based, to determine whether a construction was fairly
possible by which the constitutional questions could be
avoided. In contrast to the criminal aliens in
Zadvydas; the Uighurs held in Guantanamo have been
judicially determined to be unlawfully held by the
United States. Further, they were involuntarily
transported by the government to territory over which
the United States wields complete jurisdiction and
control. Moreover, the relevant statute in the present
cases includes no specific authorization for detention.
Because the constitutional dangers are as serious or
greater than in Zadvydas, the Kiyemba court's failure
to first resort to construction of the detention statute
itself - here the AUMF - to avoid the constitutional
question requires reversal under this Court's
precedent.
The error in failing to interpret the AUMF is
reinforced by Martinez, which involved excludable
Mariel Cubans who had been indefinitely detained
under the same statute as in Zadvydas. Under a
fiction of immigration law, Mariel Cubans were
considered to have never "entered" the country and,
the government argued, had fewer rights than
deportable aliens. The language ofthe statute did not
differentiate between the treatment of deportable
aliens and those who, under the immigration laws,
were deemed never to have entered the country.
7
Appendix C
Page 13 of23
Justice Scalia, who had dissented in Zadvydas, wrote
for the Court in Martinez and construed the statute to
apply equally to Mariel Cubans. 543 U.S. at 386-87.
The Court in Martinez held that only a single
reading of the statute was proper where the text did
not distinguish among classes of persons affected. 543
U.S. at 378. The Court elaborated on principles of
statutory construction relevant to the present case.
First, the constitutional concerns need only apply to
some of the persons affected by the statute. Martinez,
543 U.S. at 380 ("The lowest common denominator, as
it were, must govern."). Second, the application ofthe
canon of constitutional avoidance results in a purely
statutory decision. ld. ("[Constitutional avoidance] is
a tool for choosing between competing plausible
interpretations of a statutory text, resting on the
reasonable presumption that Congress did not intend
the alternative which raises serious constitutional
doubts."). Third, the constitutional limits should be
avoided even where the text could be read to permit
indefinite detention. ld. at 384 ("[S]ince interpreting
the statute to authorize indefinite detention (one
plausible reading) would approach constitutional
limits, the statute should be read (in line with the
other plausible reading) to authorize detention only for
a period consistent with effectuating removal.").
The AUMF provides greater textual bases than
the Martinez statute for interpretation as providing
judicial authority to order conditional release into the
United States for wrongfully detained persons because
the language appears to forbid such detention.
Indefinite detention of such persons would be
8
Appendix C
Page 14 of23
"[un]necessary and [in]appropriate" and not "in order
to prevent" future terrorist acts. If the AUMF's silence
can be read as either implicitly allowing persons
unlawfully detained to remain in indefinite detention
or to be subject to conditional release, then Martinez
requires the plausible interpretation of conditional
release.
C. In Addition To The Canon Of
Constitutional Avoidance, Other Rules Of
Statutory Construction Support
Interpretation Of The AUMF As
Authorizing The Conditional Release
Orders.
Under other rules of statutory construction, the
AUMF's limiting language on the use of force should
be interpreted to require conditional release in the
United States of persons judicially determined to be
detained in violation of law. As a rule of statutory
construction, ubi jus, ibi remedium - where there is a
right, there is a remedy - strongly supports the
petitioners' statutory position that the implicit
authorization for detention includes an implicit
effective remedy for wrongful detention. See Texas &
P'Ry. Co. v. Rigsby, 241 U.S. 33, 39-40 (1916). The
Kiyemba court's failure to interpret the AUMF before
reaching constitutional questions led it to view this
maxim as lacking an independent statutory or
constitutional existence. 555 F .3d at 1027. However, as
a canon of construction, especially related to the scope
of remedy in the AUlvIF and the habeas corpus
statutes, as opposed to an independent cause of action,
the principle directly applies as an aid to
9
Appendix C
Page 15 of23
interpretation of the AUMF. Similarly, given the
implicit authority to transport aliens into the exclusive
jurisdiction and control of the United States, the
statute must also provide a balancing authority to
release from prison a person wrongfully incarcerated
to avoid fundamental unfairness. See Wardius v.
Oregon, 412 U.S. 470, 477-78 (1973) (statute with
express authorization only for government discovery
either could be interpreted to provide reciprocal
authorization for defense discovery or the discovery
provision violated due process).
Given the AUMF's silence regarding indefinite
detention of persons determined to be unlawfully held
under its authority, the Kiyemba court also violated
the clear statement rule: "In interpreting a wartime
measure we must assume that [its] purpose was to
allow for the greatest possible accommodation between
... liberties and the exigencies of war" Hamdi, 542
U.S. at 544 (Souter, J., concurring) (quoting Ex parte
Endo, 323 U.S. 283, 300 (1944. The AUMF includes
no clear statement that a person found by the
Judiciary to be unlawfully detained in territory
controlled by the United States can continue for life in
indefinite detention.
Unlawful detentions such as those before the
Court, by definition, do not accomplish the only
legitimate purpose of detention - prevention of return
to the battlefield. The plain language of the statute
permits detention only if needed - "necessary and
appropriate" - to accomplish a specified purpose - "in
order to" prevent attacks. Failure to construe the
AUMF to authorize conditional release raises serious
10
Appendix C
Page 16 of23
constitutional issues regarding life-long imprisonment,
under extraordinarily harsh conditions, of persons for
whom a federal judge has granted the writ of habeas
corpus. The AUMF, when properly construed under
the canons of statutory interpretation, authorizes
Judicial action that effectively remedies wrongful
detention that serves no permissible purpose of
preventive detention.
II. This Court Should Grant Certiorari To
Protect The Integrity Of Its Precedent
Because, In Violation Of The Principles Of
Stare Decisis, The Lower Court Implicitly
Overruled Rasul And Disregarded The
Retroactivity Ruling Of Hamdan.
The Kiyemba opinion is notable for never
mentioning the seminal case regarding habeas corpus
rights of Guantanamo detainees: Rasul v. Bush, 542
U.S. 466 (2004). In Rasul, this Court reviewed the
Court of Appeals ruling that aliens outside the
sovereign territory of the United States in
Guantanamo had no cognizable rights. Al Odah v.
United States, 321 F.3d 1134 (D.C. Cir. 2003)
(Randolph, J.). The lower court strictly relied on
Cuba's sovereignty over Guantanamo, regardless of
this Country's plenary and exclusive jurisdiction
pursuant to treaties and leases. The circuit court
relied extensively on Johnson v. Eisentrager, 339 U.S.
763 (1950), to hold that aliens in Cuba had no habeas
corpus or due process rights.
This Court reversed, holding that, where
treaties and leases conferred on the United States
11
Appendix C
Page 17 of23
exclusive jurisdiction and control over Guantanamo,
the habeas corpus statute provided federal courts
jurisdiction to determine whether the aliens were
unlawfully held. The Court relied on the statutory and
common law function of habeas corpus to interpret 28
U.S.C. 2241 as providing federal courts jurisdiction
to hear habeas corpus challenges brought by
Guantanamo detainees. In response to the
government's claims regarding Eisentrager, the Court
extensively distinguished and limited its effect. Rasul,
542 U.S. at 475-79. The Court also noted that the
habeas corpus statute "draws no distinction between
Americans and aliens in federal custody," so the
statute's protections should be coextensive. Id. at 481.
In Kiyemba, Judge Randolph relied extensively
on cases such as Eisentrager to analyze the rights of
aliens outside the sovereign territory of the United
States in terms indistinguishable from the Al Odak
opinion reversed in Rasul almost five years earlier.
555 F.3d at 1026-27. The lower court's failure to cite
Rasul appears to be based on the erroneous
assumption that Rasul had been overruled by the
Detainee Treatment Act of 2005. With no
acknowledgment ofthe plenary jurisdiction the United
States exercises over Guantanamo, the court found
"the due process clause does not apply to aliens
without property or presence in the sovereign territory
ofthe United States." Kiyemba, 555 F.3d at 1026. In
support of application of this principle to Guantanamo
prisoners, the court stated: "The Guantanamo Naval
Base is not part of the sovereign territory of the United
States. Congress so determined in the Detainee
12
Appendix C
Page 18 of23
Treatment Act of 2005 1005(g), 119 Stat. 2743." Id.
at 1026 n.9.
6
The lower court profoundly erred in ignoring
Rasul. The cited portion of the DTA is irrelevant to
this Court's analysis in Rasul, which assumed that, in
a geographic sense, Guantanamo is not part of the
United States. The Rasul ruling was predicated on
"the continuance of the ultimate sovereignty of the
Republic of Cuba" while the United States exercised
"complete jurisdiction and control" over the base. 542
U.S. at 471. Even if the statute were arguably
relevant, the lower court should have deferred to this
Court's judgment regarding the DTA's effect on this
Court's precedent: "[T]he Court of Appeals should
follow the case which directly controls, leaving to this
Court the prerogative of overruling its own decisions."
Agostini v. Felton, 521 U.S. 203, 237 (1997). By
ignoring this Court's careful analysis of the relevant
treaties and leases and the unique role of habeas
corpus in protecting liberty, the lower court treated
aliens who have a judicial determination they are
unlawfully in custody, after having been involuntarily
transported to territory in the exclusive jurisdiction
and control of the United States, as if they are none of
this Country's business.
6 The DTA defines the United States as follows: ''For the
purposes ofthis section, the term 'United States', when used in a
geographic sense, is as defined in section lOl(a)(38) of the
Immigration and Nationality Act and, in particular, does not
include the United States Naval Station, Guantanamo Bay, Cuba.
13
Appendix C
Page 19 of23
The lower court's failure to respect the Rasul
holding is compounded by similar disregard of this
Court's holding on retroactivity in Hamdan v.
Rumsfeld, 548 U.S. 557 (2006). If the DTA were
relevant prospectively - which it is not - retroactive
application to habeas petitions filed before its
enactment would violate Hamdan. In that case, after
the Court of Appeals upheld the military commissions'
procedures for trying Guantanamo prisoners (Hamdan
v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005) (Randolph,
J., the government asserted the intervening DTA,
signed into law on December 30, 2005, as a bar to
relief. This Court granted habeas corpus on the merits
after holding that, applying ordinary principles of
statutory construction, the DTA could not apply
retrospectively to Guantanamo detainees whose
petitions had already been filed. Hamdan, 548 U.S. at
576-77. Under Hamdan's holding, the DTA could not
be applied to Mr. Kiyemba, whose petition was filed on
July 29, 2005, nor to Mr. Basardh and Mr. Ginco,
whose petitions were filed on May 30,2005, and June
30, 2005, respectively.
III. This Court Should Summarily Grant
Certiorari, Vacate The Circuit Court
Ruling, And Reinstate The District Court
Order Of Conditional Release In Order To
Vindicate The Speedy Relief Required By
Statutory And Constitutional Habeas
Corpus.
This Court should resolve this case with
extreme expedition. Under 28 U.S.C. 2243, "[T]he
court shall summarily hear and determine the facts,
14
Appendix C
Page 20 of23
and dispose ofthe matter as law and justice require."7
The lower courts have heard and determined the facts:
the petitioners are imprisoned in violation of law.
What remains is for the Court to dispose of the matter
"as law and justice require." Consistent with this
Court's long-standing recognition ofthe equitable basis
for habeas corpus relief, the statute itself should be
read to encompass conditional release into the United
States for persons unlawfully held on territory within
the exclusive jurisdiction of the United States. See
Boumediene, 128 S.Ct. at 2267 ("Habeas 'is at its core
an equitable remedy"') (quoting Schlup v. Delo, 513
U.S. 298, 319 (1995)).
In other contexts, this Court has found that the
traditional language reqUlrmg the court to
"summarily" hear habeas cases, which has continued
into the federal habeas corpus statue, reflects the need
for "promptness," and action taken "without delay," in
order to "speedily" provide liberty to the unlawfully
detained. Storti v. Massachusetts, 183 U.S. 138,143
(1901); accord Carafas v. LaVallee, 391 U.S. 234, 238
(1968); Stack v. Boyle, 342 U.S. 1, 4 (1951). In
Boumediene, the Court noted that in some
Guantanamo cases "six years have elapsed without the
judicial oversight required by habeas corpus" and that
"the costs of delay can no longer be borne by those who
are held in custody." 128 S.Ct. at 2275.
7 Because this Court in Boumediene held unconstitutional
the amendment to 2241 purporting to strip federal courts of
habeas corpus jurisdiction, 128 S. Ct. at 2275, the same statutory
jurisdiction for habeas corpus relief applies as this Court
recognized in Rasul.
15
Appendix C
Page 21 of23
Seven years of custody without relief - for
persons with a judicial determination that there is no
lawful basis for continued indefinite detention - is
unconscionable. The rule oflaw requires that there be
no further delay, especially where this Court's
precedent is being ignored. The norm of speedy
disposition codified in 28 U.S.C. 2243 is made a
mockery by the reality: the return "shall" be filed
"within three days unless for good cause additional
time, not to exceed twenty days, is allowed" (the return
in Mr. Ginco's case was filed 1,240 days after the
petition was filed); the hearing shall be set "not more
than five days after the return unless for good cause
additional time is allowed" (the hearing in Mr.
Basardh's case occurred 1,401 days after the filing of
the initial return). Most critically, despite judicial
determinations of no lawful basis for continued
detention of prisoners held in terrible isolation and
harsh conditions of confinement year after year, the
process itself becomes, in effect, a suspension of the
Great Writ where another round of normally scheduled
litigation would add days and months of unjust
deprivation of liberty. Summary reversal and remand
to the District Court to execute its order, based on the
statutory authority of the AUMF, as reinforced by the
equitable powers of constitutional and statutory
habeas corpus, is necessary to do the simple justice
that has been too long delayed.
Conclusion
The petitioners demonstrated that the Court of
Appeals in Kiyemba ruled inconsistently with
Boumediene and exceeded constitutional limitations on
16
Appendix C
Page 22 of23
preventive detention. The Court should summarily
grant the petition for certiorari and reinstate the
District Court's grant of meaningful relief by
construing the AUMF and the habeas corpus statutes
to confer authority to order that the Executive
conditionally release unlawfully held persons into the
United States from territory over which the United
States exercises sole jurisdiction and control.
STEVENT. WAX
Federal Public Defender
STEPHEN R. SADY*
Chief Deputy Federal Public Defender
*Counsel of Record
101 SW Main Street, Suite 1700
Portland, Oregon 97204
(503) 326-2123
Counsel for Amicus Curiae
17
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Page 23 of23