In Between Guantanamo and a Hard Place: How will the U.S. Supreme Court Do Right by the Uighurs?

Last Tuesday, the U.S. Supreme Court granted leave in the politically charged case of Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009). The main legal issue is whether the federal courts have the jurisdiction to order that Guantanamo detainees be released into the United States. For anyone with a strong commitment to liberty and basic respect for human rights, the facts of the case are pretty remarkable, if not shocking. A group of Uighurs had fled religious persecution in China and set up camp in Afghanistan. They were forced to move to Pakistan when the U.S. military began to bomb their camp. They received a warm welcome in Pakistan, whereby the locals gave the Uighurs over to the U.S. military for $5,000 per head. Considered to be enemy combatants at the time, the Uighurs were shipped off for a little R&R at a certain island resort, commonly known as Guantanamo Bay, in 2002. Once the U.S. government determined that the Uighurs were non-enemy combatants, it approved their petitions for release. The issue at hand arose out of the government’s inability to find countries that were willing to accept the Uighurs.

The U.S. government will not allow the seventeen Uighurs in question to live in the U.S. because they received paramilitary training and allegedly pose a security threat. It maintains this position despite deeming them to be non-enemy combatants. Other countries have refused to accept the seventeen petitioners, including China, their native country. Consequently, the Uighurs have been forced to remain in Guantanamo Bay.

To free themselves from limbo, the Uighurs petitioned for the writ of habeas corpus. District Court Justice Urbina of the District of Columbia granted their petition and gave them permission to be released in the U.S. Conditions of their release were to be imposed on a later date. His decision was controversial because of the conflicting demands of the separation of powers, political sovereignty, and the “wind-up” authority of the executive branch.


Justice Urbina assumed that the executive branch had authority to wind-up wartime detentions by finding a place for the Uighurs to relocate. Using a three-step test, he held that the government had lost its constitutional power to wind-up. First, detention had effectively become infinite due to the improbability of finding a country willing to accept them. Second, there was no reasonable basis to believe that the Uighurs would be fighting against the U.S. in battle. Lastly, the government had not provided any legal justification for the continued detention. Having satisfied this test, the government lost control over the process.

What Does the Separation of Powers and Sovereignty have to do with Habeas Corpus?

Jurisdiction of the federal courts to rule on the petition for habeas corpus was derived from the U.S. Supreme Court’s decision in Boumediene v. Bush, 553 U.S. (2008). In the latter, it was held that “Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause’s protections because they have been designated as enemy combatants or because of their presence at Guantanamo.” The Suspension Clause referred to in this excerpt is found in Article I, s. 9 of the U.S. Constitution. It states: “the privilege of habeas corpus shall not be suspended, unless in cases of rebellion or invasion the public safety may require it.” Based on their non-enemy combatant status, the Uighurs are protected by this clause and can be granted habeas corpus.

According to Justice Urbina, the Supreme Court in Boumediene “unequivocally [extended] to Guantanamo detainees the constitutional right to habeas corpus, and in the process, the Court re-emphasized the importance of the writ in preserving liberty.” This excerpt alludes to the crucial role that the courts play in checking arbitrary action or unlawful detention by the government. In other words, the courts’ role in the U.S. separation of powers is to protect the individual’s liberty from the government. Viewed in isolation, this line of reasoning seems to favor the release of the Uighurs. Its narrow point of view becomes apparent when the issues of judicial activism and sovereignty are considered.

Sovereignty over its territory sums up the U.S. government’s opposition to the federal courts possessing the jurisdiction to grant habeas corpus to Guantanamo detainees. It argues that only the government has discretion over the admittance of foreign nationals onto U.S. soil. In support of its position, the government argues that the release of the Uighurs into the U.S. would undermine the will of the political sovereign and upset the separation of powers in favour of the judiciary. While judicial activism was not explicitly discussed in Justice Urbina’s decision, this topic was highlighted in the majority decision written by Senior Circuit Justice Randolph for the Court of Appeal. Notwithstanding Justice Urbina’s invocation of the Suspension Clause in the U.S. Constitution, he found that there was no legal authority to support the former’s order to release the Uighurs.

Given his perceived absence of legal authority, Justice Randolph infers that the lower court was referring to the Fifth Amendment‘s due process clause. The latter states that no person “shall be deprived of life, liberty, or property, without due process of law”. Justice Randolph found that the clause could not support the federal court’s grant of habeas corpus. He referred to several cases which indicated that the “due process clause does not apply to aliens without property or presence in the sovereign territory of the United States.” By exploiting the technicality that Guantanamo Bay is not included in the sovereign territory of the U.S., and the unsurprising reality that the stateless Uighurs do not fulfill the property requirements, the Court of Appeal refused to protect individuals made vulnerable by the government. It is clear that its overriding concern was to promote the sovereignty of the state, despite the tremendous cost of interfering with liberty.

The prioritization of sovereignty is evident in the Court of Appeal’s rejection of Justice Urbina’s invocation of ubi jus, ibi remedium—where there is a right, there is a remedy. As stated above, the Uighurs have the right to habeas corpus according to the federal court’s interpretation of the U.S. Constitution. Despite any rights that the Uighurs may have, the Court of Appeal was prepared to immunize the state against having to remedy the violation of rights where matters of sovereignty are concerned.

Instead of concluding its analysis at that point, the Court of Appeal chose to dig itself into a hole. After giving sovereignty priority over individual liberty, it went on to find that “aliens” cannot enter the U.S. as a right, but only as a privilege granted by the government. Quoting Kanuff v. Shaughnessy, 345 U.S. 206 (1953), the Court of Appeal stated, “Such a privilege is granted to an alien only upon such terms as the United states shall prescribe.” Arguably, this threshold has already been satisfied. From 2003 to 2006, the government cleared all seventeen petitioners for release. Implied in the clearance was the granting of the privilege to enter into the U.S. It must have occurred to the government that if it could not find countries willing to accept the Uighurs, then the latter would be released into the U.S. Otherwise, it would be inconsistent to clear them for release and then force them to remain in Guantanamo Bay. By granting habeas corpus and authorization to enter the U.S., the District Court simply reinforced the government’s actions. Coupled with the conditions of release imposed by the District Court, the grant of habeas corpus satisfied the threshold imposed by the Court of Appeal.

Given the Court of Appeal’s inconsistent reasoning, one is led to question whether the court was exercising judicial restraint solely in the name of sovereignty. Numerous controversial topics underlie this case. They include: relations with China, the rights of detainees, immigration policy and public safety. If the Uighurs were released into the U.S., opponents would rely upon these controversial topics to criticize the judiciary as being activists subverting the government. While the separation of powers should be respected, there is a breaking point whereupon the judiciary must step in to rectify the government’s refusal or inability to implement much needed change. This role of the judiciary has been recognized as being fundamental to facilitating progressive change. The Court of Appeal failed to satisfy this role when it reversed the decision of Justice Urbina. It is now up to the U.S. Supreme Court to accept this role and do justice by the Uighurs.

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