Kiyemba v. Bush

Kiyemba v. Bush (Civil Action No. 05-cv-01509) is a petition for habeas corpus filed on behalf of Jamal Kiyemba, a Ugandan citizen formerly held in extrajudicial detention in the United States' Guantanamo Bay detention camps, in Cuba.^[1] Mr. Kiyemba is the "next friend" of each of the nine Uighur petitioners who seek the writ of habeas corpus through the petition.

Susan Baker Manning and a team of Bingham McCutchen lawyers are counsel for his petition, and those of nine other men whose petitions were attached to his.

Kiyemba has been repatriated. But most of the other men remain in captivity.

The Detainee Treatment Act of 2005 (DTA) closed off the right of Guantanamo captives to submit new petitions of habeas corpus. (Pending cases were left open.) The DTA opened a path for Guantanamo captives to submit a limited appeal to Federal Courts of appeal in Washington DC.^[2] The Military Commissions Act of 2006 (MCA) closed down the pending habeas corpus cases. Attorneys for the captives have both initiated a challenge to the constitutionality of the MCA's stripping of the right to habeas corpus; and they have initiated appeals in the DC Federal Courts of appeal.

The DTA's limited avenue of appeal only allows challenges as to whether the Combatant Status Review Tribunal correctly followed their rules.

Main article: Guantanamo captives' appeals in Washington DC Courts

Manning has initiated steps to have her remaining clients status reviewed in the Washington DC courts.

Military Commissions Act

The Military Commissions Act of 2006 mandated that Guantanamo captives were no longer entitled to access the US civil justice system, so all outstanding habeas corpus petitions were stayed.^[3]

Boumediene v. Bush

On June 12, 2008 the United States Supreme Court ruled, in Boumediene v. Bush, that the Military Commissions Act could not remove the right for Guantanamo captives to access the US Federal Court system. And all previous Guantanamo captives' habeas petitions were eligible to be re-instated.

Re-initiation

On July 18, 2008 George M. Clarke III filed a "Uighur petitioners' status report" on behlf of the seventeen Uyghur captives in Guantanamo.^[4] In the status report Clarke named seven Uyghur captives whose habeas petitions were amalgamated with Kiyemba v. Bush. Their names were: Abdul Nasser, Abdul Sabour, Abdul Semet, Hammad Memet, Huzaifa Parhat, Jalal Jalaldin, Khalid Ali and Sabir Osman.

On 2008-07-22 Susan Baker Manning filed a "Huzaifa Parhat's motion for judgment on his habeas petition ordering release into the continental United States" in Civil Action No. 05-cv-1509 (RMU).^[5]

On 2008-07-23 Manning filed a "NOTICE OF FILING" on behalf of Abdusabur Doe (ISN 275).^[6]

On 2008-07-25 Manning filed a "Huzaifa Parhat's motion for immediate release on parole into the continental United States pending final judgment on his habeas petition".^[7]

On 2008-08-15 Manning filed a "REPLY OF HUZAIFA PARHAT TO GOVERNMENT’S OPPOSITION TO MOTIONS FOR PAROLE AND JUDGMENT ORDERING RELEASE".^[8]

On 2008-10-01 Manning filed a "PETITIONERS’ SUPPLEMENTAL MEMORANDUM IN RESPONSE TO GOVERNMENT’S NOTICE OF STATUS".^[9]

On 2008-10-07 Manning filed a "PETITIONERS’ PROFFER REGARDING AVAILABLE SERVICES AND SUPPORT FOR RESETTLEMENT IN THE UNITED STATES".^[10]

On 2008-10-07 Manning filed a "[Proposed] order".^[11]

On 2008-10-22 Manning filed a "Emergency motion for order related to counsel visit of October 27, 2008".^[12]

Appeal

After the men were ordered to be released by the US District Court the Department of Justice appealed that ruling to a panel of court of appeals.^[13] The Court of Appeals ruled that the courts lacked the authority to force men held in Guantanamo to be released on US territory.^[14]

Kiyemba v. Obama, also known as Kiyemba I

One of the unresolved issues raised by the re-initiation of the Guantanamo captives' habeas petitions is whether Federal civilian judges have the authority to order the Executive Branch to set captives free in the United States.^[15][16] The United States Supreme Court has considered making a ruling in the case of the Kiyemba petitioners, over whether the Judicial Branch has that authority.

In 2009 the State Department was able to get Bermuda to offer residency to four of the Uyghur captives.^[17] A delegation from the small Pacific Ocean State of Palau visited the Uyghurs in Guantanamo, and eventually offered residency to all but one of the Uyghur captives.

The one Uyghur captive for whom Palau decline to offer residence was Arkin Mahmud, who had travelled to Afghanistan to look for his younger brother, Bahtiyar Mahnut, who their family was concerned had disappeared into Afghanistan.^[17] He was one of the eldest Uyghurs, and, he became seriously mentally ill in Guantanamo—ill-enough that Palau did not feel did not have the mental health support infrastructure to heal him. His younger brother felt that he could not abandon the brother who had only travelled to Afghanistan to try to rescue him.

In February Switzerland accepted the two brothers, leaving only five Uyghurs in Guantanamo.^[17] Since the other five remaining Uyghurs have been offered residency in Palau some legal scholars have speculated that the Supreme Court will decline to rule on the Kiyemba habeas, because they have the option of moving to Palau.^[18][19]

Kiyemba II

Kiyemba II is the name for habeas corpus petitions filed on behalf of ten Guantanamo captives, who fear being repatriated to their country of citizenship.^{[20][21][22][23]} In April 2009 a three judge panel of [[DC Circuit court of appeals reversed the ruling of District Court Judges, stating that they had no authority to rule whether the executive branch could send captives back to their home countries, when they feared torture or other abuse there. On September 10, 2010, the entire court sat to review the case, en banc. Their decision was split six to five, confirming their colleagues ruling. However the five dissenters wrote a long opinion, and commentators have speculated that the case will be heard before the Supreme Court.

References

1. ^ "CIVIL DOCKET FOR CASE #: 1:05-cv-01509-RMU -- KIYEMBA et al v. BUSH et al". U.S. District Court, District of Columbia. November 9, 2005. http://www.pegc.us/archive/Kiyemba/docket.txt. Retrieved 2008-01-06. 
2. ^ Carol D. Leonnig (December 22, 2007). "Detainee Evidence Probe Weighed: Judge Told Guantanamo Information May Have Been Destroyed". Washington Post. pp. Page A02. http://www.washingtonpost.com/wp-dyn/content/article/2007/12/21/AR2007122101392.html. Retrieved 2008-01-06. 
3. ^ Peter D. Keisler, Douglas N. Letter (2006-10-16). "NOTICE OF MILITARY COMMISSIONS ACT OF 2006" (PDF). United States Department of Justice. http://natseclaw.typepad.com/natseclaw/files/Hamdan.28j.letter.pdf. Retrieved 2008-09-30.  mirror
4. ^ George M. Clarke III (2008-08-18). "Guantanamo Bay Detainee Litigation: Doc 96 -- UIGHUR PETITIONERS’ STATUS REPORT" (PDF). United States Department of Justice. http://docs.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2008mc00442/131990/96/0.pdf. Retrieved 2008-08-22.  mirror
5. ^ Susan Baker Manning (2008-07-22). "Guantanamo Bay Detainee Litigation: Doc 198 -- Huzaifa Parhat's motion for judgment on his habeas petition ordering release into the continental United States". United States Department of Justice. http://docs.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2008mc00442/131990/198/0.pdf. Retrieved 2008-11-17. 
6. ^ Susan Baker Manning (2008-07-23). "Guantanamo Bay Detainee Litigation: Doc 190 -- NOTICE OF FILING". United States Department of Justice. http://docs.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2008mc00442/131990/190/0.pdf. Retrieved 2008-11-17. 
7. ^ Susan Baker Manning (2008-07-25). "Guantanamo Bay Detainee Litigation: Doc 203 -- Huzaifa Parhat's motion for immediate release on parole into the continental United States pending final judgment on his habeas petition". United States Department of Justice. http://docs.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2008mc00442/131990/203/0.pdf. Retrieved 2008-11-17. 
8. ^ Susan Baker Manning (2008-08-15). "Guantanamo Bay Detainee Litigation: Doc 258 -- REPLY OF HUZAIFA PARHAT TO GOVERNMENT’S OPPOSITION TO MOTIONS FOR PAROLE AND JUDGMENT ORDERING RELEASE". United States Department of Justice. http://docs.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2008mc00442/131990/258/0.pdf. Retrieved 2008-11-17. 
9. ^ Susan Baker Manning (2008-10-01). "Guantanamo Bay Detainee Litigation: Doc 612 -- PETITIONERS’ SUPPLEMENTAL MEMORANDUM IN RESPONSE TO GOVERNMENT’S NOTICE OF STATUS". United States Department of Justice. http://docs.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2008mc00442/131990/612/0.pdf. Retrieved 2008-11-17. 
10. ^ Susan Baker Manning (2008-10-07). "Guantanamo Bay Detainee Litigation: Doc 667 -- PETITIONERS’ PROFFER REGARDING AVAILABLE SERVICES AND SUPPORT FOR RESETTLEMENT IN THE UNITED STATES". United States Department of Justice. http://docs.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2008mc00442/131990/667/0.pdf. Retrieved 2008-11-17. 
11. ^ Susan Baker Manning (2008-10-07). "Guantanamo Bay Detainee Litigation: Doc 668 -- [Proposed order"]. United States Department of Justice. http://docs.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2008mc00442/131990/668/0.pdf. Retrieved 2008-11-17. 
12. ^ Susan Baker Manning (2008-10-22). "Guantanamo Bay Detainee Litigation: Doc 776 -- Emergency motion for order related to counsel visit of October 27, 2008". United States Department of Justice. http://docs.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2008mc00442/131990/776/0.pdf. Retrieved 2008-11-17. 
13. ^ "Jamal Kiyemba v. Barack H. Obama". United States Department of Justice. 2009-02-18. Archived from the original on 2009-08-02. http://www.webcitation.org/query?url=http%3A%2F%2Fpacer.cadc.uscourts.gov%2Fcommon%2Fopinions%2F200902%2F08-5424-1165428.pdf&date=2009-08-24. Retrieved 2009-08-02. 
14. ^ "US: Resettle Guantanamo Uighurs in the United States". Reuters. 2009-02-18. Archived from the original on 2009-08-24. http://www.webcitation.org/query?url=http%3A%2F%2Fwww.alertnet.org%2Fthenews%2Fnewsdesk%2FHRW%2F99e137222f12b4bf7d9b9b0003dfad62.htm&date=2009-08-24. 
15. ^ Jennifer K. Elsea, Michael John Garcia (2010-02-03). "Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court". Congressional Research Service. http://www.fas.org/sgp/crs/natsec/RL33180.pdf. Retrieved 2010-04-18. "Later this year, the Supreme Court is expected to consider arguments in the case of Kiyemba v. Obama as to whether federal habeas courts have the authority to order the release into the United States of Guantanamo detainees found to be unlawfully held." 
16. ^ Sidney Rosdeitcher (2009-02-19). "Kiyemba v. Obama: A Mockery of the Rule of Law". Breenan Center for Justice. http://www.brennancenter.org/blog/archives/kiyemba_v_obama_a_mockery_of_the_rule_of_law/. Retrieved 2010-04-18. "Yesterday, the D.C. Circuit Court of Appeals in Kiyemba v. Obama overturned a lower court's order directing the release into the United States of seventeen Uighurs (Muslims from Western China) detained at Guantánamo Bay Naval Base for almost seven years. The decision makes a mockery of the rule of law, flies in the face of Supreme Court precedent, and contradicts principles of detainee treatment espoused by President Obama. President Obama should promptly direct the release of petitioners into the United States, subject to appropriate conditions of parole, or arrange for one of our European allies to accept them." 
17. ^ ^{a b c} Andy Worthington (2010-02-04). "Swiss Take Two Guantánamo Uighurs, Save Obama from Having to Do the Right Thing". http://www.andyworthington.co.uk/2010/02/04/swiss-take-two-guantanamo-uighurs-save-obama-from-having-to-do-the-right-thing/. Retrieved 2010-02-04. 
18. ^ Lyle Denniston (2010-03-22). "Victory for U.S. on detainees: Analysis of Monday orders". Scotusblog. http://www.scotusblog.com/2010/03/victory-for-u-s-on-detainees/. Retrieved 2010-04-18. 
19. ^ Lyle Denniston (2010-03-22). "U.S. seeks new Kiyemba I ruling: 'No need for new fact hearing'". Scotusblog. http://www.scotusblog.com/2010/03/u-s-seeks-new-kiyemba-i-ruling/. Retrieved 2010-04-18. 
20. ^ Lyle Denniston (2009-11-11). "Another detainee case filed: Tracking new cases: Kiyemba v. Obama (Kiyemba II)". Scotusblog. http://www.scotusblog.com/2009/11/another-detainee-case-filed/. Retrieved 2010-04-18. "The Supreme Court on Monday declined to review the D.C. Circuit Court's ruling in Kiyemba V. Obama (Supreme Court docket 09-581). The D.C. Circuit Court held that the judiciary may not review executive branch decisions regarding when or where to transfer detainees that it is prepared to release from Guantanamo Bay. This case is now informally referred to as "Kiyemba II." Ten current Guantanamo detainees who have been cleared for release object to being returned to their country of national origin out of fear or concern for their safety and well-being." 
21. ^ Eric Montalvo (2010-03-24). ""Kiyemba II" – Cruel and Unusual Punishment Determined Constitutional". American Constitution Society. http://www.acslaw.org/node/15653. Retrieved 2010-04-18. "One of the ten detainees who brought the suit in Kiyemba II, Algerian national Ahmed Belbacha, was cleared for release over three years ago and has endured over eight years of incarceration in U.S. custody. During his incarceration by the U.S. he was tried in absentia, convicted, and sentenced to 20 years by the Algerian government. He has asserted in filings that he "has been threatened with death by an Islamic terrorist group in Algeria," and the Algerian government views him as a deserter."  mirror
22. ^ Lyle Denniston (2010-03-21). "A sequel to Kiyemba II? Algerian may be next in line". Scotusblog. http://www.scotusblog.com/2010/03/a-sequel-to-kiyemba-ii/. Retrieved 2010-04-18. "Urging the Supreme Court to broaden its new review of government policy on transfers of detainees out of Guantanamo Bay, attorneys for four Chinese Muslim Uighurs filed a new case Tuesday evening. If the Court were to grant review, it would focus the Justices’ attention on two layers of dispute between the Executive Branch and the courts, both perhaps affecting President Obama’s plans to close Guantanamo early next year. The issues in the new case and in an earlier one, granted review by the Court on Oct. 20, “are distinct,” Tuesday’s petition said. Moreover, the legal issue at stake in the new case is present in more than 150 pending detainee cases in lower courts."  mirror
23. ^ Lyle Denniston (2010-09-11). "Another look at detainees’ plea". Scotusblog. http://www.scotusblog.com/2010/09/another-look-at-detainees-plea/. Retrieved 2010-09-14. "In Kiyemba II, issued in April 2009, the Circuit Court went further: it ruled that District judges have no authority to regulate the movement of detainees from Guantanamo, anywhere in the world. Judges, it said, are not to second-guess the government’s decisions on resettlement or transfer of any detainee. The Circuit Court denied rehearing en banc of that case in July of last year, and the Supreme Court denied review of a petition in that case (Supreme Court docket 09-581) this past March 22."  mirror