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Sunday, February 22, 2009

Is Kiyemba Cert.-Worthy?

My initial reaction to the news of the D.C. Circuit's decision this Wednesday in Kiyemba v. Obama, holding that the federal courts have no power to order the release of the Uighurs held at Guantanamo into the United States, was that the Supreme Court would never go near this decision, especially given the sui generis nature of the case (since, unlike most of the remaining Guantanamo detainees, there is nowhere for the Uighurs to go).

Then, I read Judge Randolph's opinion. It was mostly as expected, but one passage particularly caught my eye. Randolph rejects the detainees' due process claim because, in his words, "Decisions of the Supreme Court and of this court . . . hold that the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States." He then cites a number of precedents in supoort, including Zadvydas, Verdugo-Urquidez, and Johnson v. Eisentrager (and a bunch of D.C. Circuit decisions, among others), and admonishes the district court for failing to follow binding precedent.

What's fascinating--and ironic--of course, is that he nowhere cites Boumediene in this discussion. To be sure, Justice Kennedy was extremely careful to limit his analysis in Boumediene to the particular question of whether the Suspension Clause applies in Guantanamo, and to thereby leave open the question of whether other constitutional protections apply to non-citizens detained there. But to say it's an open question is not the same thing as concluding--as Randolph apparently must have--that Boumediene in no way calls these earlier cases (Verdugo-Urquidez and Eisentrager, especially) into question. Indeed, as Orin already noted, Boumediene was the third time that the Supreme Court has reversed a Randolph opinion taking a skeptical view of the legal rights of the detainees (see also Rasul and Hamdan). At some point along the way, don't some of these precedents become worth revisiting?

All of this leads me to wonder if Randolph may have written an opinion that the Court--which might otherwise have been inclined to duck this case--cannot ignore. To say that the Due Process Clause categorically does not apply to Guantanamo is to suggest that the very review that Boumediene mandates need only be superficial. What's more, such a conclusion wasn't necessary to reject the Uighur's claims, so long as Randolph's analysis of the immigration laws is correct (my own view is that this, too, was an open question).

It's a messy case with unique facts and a very possible political solution in the offing that would moot the petitioners' claims. But I just can't see how Randolph's cursory and wholly unconvincing analysis of the detainees' due process rights can be left intact, either by the en banc D.C. Circuit or, if necessary, by his admirers on all-things-Gitmo: the Supreme Court.

Posted by Steve Vladeck on February 22, 2009 at 03:27 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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(Oh, and I should add that I am agreeing that the Supreme Court might very well grant cert because of the way Randolph was showing disdain for the Justices' recent opinions, not that it's time to rethink Eisentranger or Verdugo.)

Posted by: Orin Kerr | Feb 23, 2009 2:40:12 AM

I tend to agree. Call it the Judge Reinhardt Effect: If a lower court judge repeatedly thumbs his nose at the Supreme Court, the Justices start paying extra special attention to his work.

Posted by: Orin Kerr | Feb 22, 2009 11:50:45 PM


I am sure you will file the cert petition or amicus brief. You have filed a legal document in every other detainee case, haven't you?

Posted by: Peter Tarok | Feb 22, 2009 4:16:52 PM

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