Constitutional Right, No Gitmo Remedy

It’s not as though this is a new problem in American rights law. The expansion of defenses like qualified immunity for federal officials, the statutory restrictions on collateral federal review of state criminal convictions with constitutional infirmities, the stark limitations on common law constitutional remedies in the courts – all of these areas of doctrine accept the idea that there may simply be no legal redress available for the victims of some rights violations – no matter how fundamental the right is.

We can now add to this disappointing catalog today’s decision by the D.C. Circuit Court of Appeals in Kiyemba v. Obama, holding that the U.S. federal courts do not have the power to order the government to release the 17 Gitmo-held Uighur detainees into the United States – even though the federal courts have concluded there is no lawful basis for their continued detention. Recall the particular problem of the Uighur detainees (among others) is that they can’t simply be sent home to China. The likelihood that they’ll face persecution (putting it mildly) there is sky-high, and the United States (among others) has treaty obligations that prohibit sending them home to such a fate. So what’s the remedy for their unlawful detention? What flows from winning their habeas case? Evidently, nothing in particular.

“Ever since the decision in the Chinese Exclusion Case, the Court has, without exception, sustained the exclusive power of the political branches to decide which aliens may, and which aliens may not, enter the United States, and on what terms…. As a result, it ‘is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.’”

Gitmo may be enough like the United States to allow constitutional habeas corpus rights to extend there (so said the Supreme Court), but it’s not quite enough like the United States to consider the detainees to have “entered” the country according to the chronically rights-defying definitions of U.S. immigration law. And because ever since the ignominious Chinese Exclusion Case the Supreme Court has held that the political branches have essentially plenary control over who crosses U.S. borders, it’s not for the courts to decide otherwise absent some very clear authorization.

So “what law authorized the district court to order the government to bring petitioners to the United States and release them here?” Not the Due Process Clause, says the D.C. Circuit. Immigration cases have always held that the Constitution doesn’t extend to non-citizens held beyond the “sovereign territory” of the United States. (Never mind, I suppose, that Justice Kennedy’s Boumediene majority no longer thinks sovereignty is the touchstone for the extraterritorial extension of constitutional rights). It also, evidently, “cannot be that because the court had habeas jurisdiction it could fashion the sort of remedy petitioners desired.” (Never mind, too, that the Boumediene majority also considered it “uncontroversial” that “the [constitutional] habeas court must have the power to order the conditional release of an individual unlawfully detained” or otherwise provide some meaningful remedy.) The appeals court simply said no, and remanded the case to the district court for “further proceedings consistent with the opinion.” (Good luck to all with that.)

So now what? Well, a caveat about the foregoing and then some options. First, I should be clear, it’s not as though I think the appeals court’s ruling is at the level of Yoo-like error. The arguments it makes about the limits existing immigration law should be read to place on the remedies available under the constitutional writ of habeas are not nonsensical. They are, however, not nearly as compelled by precedent as the court’s opinion pretends. And the court is, I believe, wrong not to recognize in this case the availability of conditional release or some other meaningful remedy – particularly in light of Rasul and Boumediene.

Second, while this case was briefed and argued before Obama took office, the matter is now (along with most else on the planet) in the new administration’s court. It would be ideal to get this D.C. Circuit opinion off the precedential books. But it would be fastest – and therefore do more justice – to put the Uighurs at the top of the list of detainees to be sent to one of those European nations now making more generous noises about sharing the burden of the post-Gitmo clean-up. The Uighurs actually seem to make as attractive candidates as any for release into the United States. And it seems hard for the U.S. Government to avoid entirely taking in at least some of the detainees it authorizes for release (even if only for purposes of subjecting them to our own immigration and deportation laws). But it’s also hard to imagine that option not requiring a doozy of a domestic political fight. And it’s a fight that, while in principle well worth having, could well take as long or longer to reach its conclusion than negotiations with an ally not quite so squeamish about meaningfully recognizing the rights they have promised. We don’t want or need to put the Uighurs in post-Gitmo immigration detention. These guys in particular have waited long enough.