Of Civil Wrongs and Rights: \u3cem\u3eKiyemba v. Obama\u3c/em\u3e and the Meaning of Freedom, Separation of Powers, and the Rule of Law Ten Years After 9/11

This article is about the rise and fall of continued adherence to the rule of law, proper application of the separation of powers doctrine, and the meaning of freedom for a group of seventeen Uighurs—a Turkic Muslim ethnic minority whose members reside in the Xinjiang province of China—who had been held at the Guantanamo Bay Naval Base since 2002. Most scholars regard the trilogy of Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush as demonstrating the Supreme Court’s willingness to uphold the rule of law during the war on terror. The recent experience of the Uighurs suggest that this commitment is either waning or was never as strong as scholars thought. About a year and a half before the tenth anniversary of the terrorist attacks of September 11, 2001, the United States Supreme Court was primed to hear oral arguments in the Uighurs’ case known as Kiyemba v. Obama. The issue in this case was whether the Uighurs, who were concededly being detained illegally, would be released from Guantanamo Bay. As a result of the government’s latest delay tactics, the Court never heard the merits of the case. Had it done so, the Court, arguably, would have established the contours of a constitutionally required habeas remedy for foreign nationals whose indefinite detention had been judicially declared illegal and no other option but release into the continental interior of the United States is possible. The Court’s dismissal of the Uighurs previously granted cert petition thus signaled the beginning of the end of the Court’s landmark “war-on–terror” line of precedential cases culminating in the evisceration of its 2008 seminal case of Boumediene v. Bush. With the D. C. Circuit Court of Appeals decision now reinstated in which the court had held in 2009 that habeas courts had no jurisdiction to order the release of foreign nationals under such circumstances because it was an immigration case triggering the political branches’ plenary power over which such matters are largely immune from judicial intervention. But Kiyemba v. Obama is not an immigration case. The Uighurs were brought here involuntarily as a result of the government’s counterterrorism policies, the implementation of which the Court had declared unlawful over the course of a four year period beginning with Rasul v. Bush in 2004. The D.C. Circuit Court holding, which still stands, was erroneous because the Uighurs never sought to immigrate to this country; their filing of writs of habeas corpus placed the matter solidly in the area of granting constitutionally required habeas relief which a habeas court has jurisdiction to decide. Through political machinations and influences at all levels of government, however, the Supreme Court has more recently decided to end its role of protecting the individual rights of Guantanamo Bay detainees with a series of denials of cert.-petitions without a single dissent authored to voice concerns about the beginning of the end of the Republic Benjamin Franklin once said we had but only if we could keep it. And although most of the original group of Uighurs has subsequently been relocated to other countries, the two still remaining have now entered their second decade of unlawful detention