Last September, I wrote about the singular case of seventeen ethnic Uighurs detained at Guantánamo Bay, notwithstanding the fact they posed no threat to the US. Last week, a federal court of appeals in DC said those men can be detained indefinitely without hope of judicial remedy.
That striking ruling has the practical effect of negating two Supreme Court opinions and rendering years of habeas corpus litigation an empty gesture. It also compounds the logistical problems of closing the prison, compromises US diplomatic efforts and reverses decades of positive development in constitutional law.
The Supreme Court should speedily reverse the DC court’s ruling–if the Obama administration fails to do the right thing by releasing the Uighurs into the United States.
Even for a federal court system inured to the practice of executing criminal defendants if they file their claims late or in the wrong forum, Wednesday’s opinion, Kiyemba v. Obama, is remarkable. To understand why requires some understanding of what precisely it said.
The Kiyemba plaintiffs’ basic argument was simple: Seven years’ illegal detention is enough. The Supreme Court has held twice, in 2004 and then in 2008, that the Guantánamo detainees can seek relief in the form of habeas corpus, the one judicial remedy embedded in the Constitution beyond the tinkering of transient majorities. Habeas without release is meaningless. And because the Uighurs would be tortured if sent back to their native China–a fact the government never contested–their only remedial avenue lay in the United States.
In a ruling by Senior Circuit Judge Raymond Randolph, the appeals court flicked those arguments away in two strikes. First, contending that the power to exclude aliens was “inherent in sovereignty,” it said it could not interfere with the detentions. Second, and without any analysis, it said that neither the Due Process Clause nor any other law entitled the petitioners to judicial relief.
Rejecting “high-minded” appeals to the situation’s manifest injustice, Judge Randolph washed his hands of the matter and left it to the diplomats struggling to find a country that will take the Uighurs.
The appeals court relied on a post–World War II case in which the Supreme Court had found prolonged detention of possible migrants at Ellis Island to be authorized by statute. It, however, wrongly transmuted these limited rulings about federal statutes into a far more sweeping conclusion of absolute constitutional power unchecked by judicial oversight.
By reaching back to these cases, the appeals court resurrected a long-interred idea of “plenary power,” i.e., that Congress has untrammeled power in dealing with migrants at the border. As constitutional scholar Louis Henkin has written, this view is “a constitutional fossil, a remnant of a prerights jurisprudence that we have proudly rejected in other respects.” This “plenary power” idea is hazardous not just for the Guantánamo detainees, but is poison for the treatment of immigrants at the border more generally.