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The Future of the Uighur Detainees’ Kiyemba Litigation

12:00 PM, Mar 15, 2010 • By DAVEED GARTENSTEIN-ROSS
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While many debate the work that current Justice Department attorneys previously did for Guantánamo Bay detainees, the detainees’ current lawyers continue to fight for their release—including, in one case, their release into the United States in violation of federal immigration law. The Supreme Court recently dismissed that case, returning the matter to a federal appellate court that has already rejected the Uighurs’ argument. Though some commentators have painted this as a “partial victory” for the detainees, that characterization is greatly exaggerated.

The Future of the Uighur Detainees’ Kiyemba Litigation

The case at issue, Kiyemba v. Obama, originally involved seven Uighur detainees from western China—but only two of these seven remain active litigants. According to publicly available government documents, both of the Uighurs who remain active either received military training at a camp in Tora Bora, Afghanistan, run by Hassan Mahsum and Abdul Haq, two notorious terror chieftains affiliated with the East Turkestan Islamic Movement (ETIM), or else supported the camp where such training occurred. Though China is ETIM’s primary focus, the U.S. State Department’s "Patterns of Global Terrorism 2003" report notes that ETIM members “fought alongside” al-Qaeda and Taliban forces when Operation Enduring Freedom commenced in late 2001, and that in May 2002, “two ETIM members were deported to China from Kyrgyzstan for plotting to attack the US Embassy in Kyrgyzstan as well as other US interests abroad.” After bringing the Uighur litigants to the Guantánamo Bay detention facility, the U.S. eventually determined that they were not “enemy combatants” because they did not engage in actual hostilities against the U.S.—but that does not mitigate the fact that, according to government documents, they are trained militants. (The detainees’ records are described in detail in FDD’s brief before the Supreme Court in Kiyemba, available here.)

The Supreme Court declared in its 2008 decision Boumediene v. Bush that Guantánamo detainees are entitled to file habeas corpus petitions challenging their detention. Thereafter, the Uighurs petitioned for their release. Among other things, they argued that because no other countries were willing to accept them, they were entitled to be released into the United States. In late 2008, a federal judge agreed, ordering the government to release the Uighurs.  Several months later, in a strongly-worded opinion, the D.C. Circuit federal appellate court reversed the lower court, explaining that the district court had no authority to release the detainees into the U.S. when their entry was barred by immigration law.

The D.C. Circuit was clearly correct. Federal law (8 U.S.C. §1182) bars the admission of aliens whom the government reasonably suspects of engaging in certain terrorism-related activities, including those who have engaged in terrorist activity, those who are members of a terrorist organization, those whom the DHS secretary or attorney general “knows, or has reasonable ground to believe, [are] engaged in or [are] likely to engage after entry in any terrorist activity,” those who endorse terrorist activity, and those who received “military-type training” from terrorist organizations. Congressional power and responsibility to regulate entry by aliens is well established: In its Galvan v. Press opinion (1954), the Supreme Court referred to this power as being “as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government.”

The Uighurs petitioned the Supreme Court to reverse the D.C. Circuit's decision, but an early strategic maneuver was their undoing. In their “Question Presented” to the Court, they doubled down on the notion that release into the U.S. was required because, in their words, “release into the United States is the only possible effective remedy.” That claim proved to be inaccurate: Shortly before the Supreme Court agreed to hear the case, six of the seven petitioners were offered release to the island of Palau—and rejected it. One rejected the offer because he wanted to stay with his brother, who had not been offered release. Then, as the parties were in the process of filing their briefs before the Court, Switzerland agreed to take the two brothers. At the DOJ’s urging, the Supreme Court dismissed the case because “each of the detainees at issue in this case has received at least one offer of resettlement in another country,” and remanded the case to the D.C. Circuit to determine what further proceedings were appropriate in light of the new facts.

Some commentators, such as Lyle Denniston, have described the Supreme Court dismissal as a “partial victory” for the Uighur detainees because the Court vacated the D.C. Circuit’s “sweeping ruling” foreclosing the possibility that the Uighurs could force the government to release them into the U.S. despite immigration laws barring such release. But such characterizations overstate a minor procedural point: By vacating the D.C. Circuit’s decision, the Supreme Court did nothing more than reopen the circuit court’s proceedings in order to allow it to determine whether to reinstate its previous decision, to engage in further factual development, or to send the case back to the original district court.

In a pleading filed on March 4, the Uighurs’ lawyers urged the latter course of action. The government’s filing before the D.C. Circuit is due on March 22; it is likely to argue that factual developments in the case are immaterial to what the D.C. Circuit said in its previous decision, and to urge the circuit court to reaffirm that opinion. Overall, there is no reason to believe that the D.C. Circuit won’t issue another decision rejecting the Uighurs’ demand to be released into the United States. Further, if the circuit court does issue another such decision, review in the Supreme Court is not at all assured, since other countries are now stepping forward to grant admission to the detainees.

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