Kiyemba v. Obama

• Decision Date: 18 February 2009
• Docket Number: No. 08-5428.,No. 08-5427.,No. 08-5425.,No. 08-5424.,No. 08-5426.,No. 08-5429.,08-5424.,08-5425.,08-5426.,08-5427.,08-5428.,08-5429.
• Citation: 555 F.3d 1022
• Parties: Jamal KIYEMBA, Next Friend, et al., Appellees v. Barack H. OBAMA, President of the United States, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

555 F.3d 1022

Jamal KIYEMBA, Next Friend, et al., Appellees v. Barack H. OBAMA, President of the United States, et al., Appellants.

No. 08-5424.

No. 08-5425.

No. 08-5426.

No. 08-5427.

No. 08-5428.

No. 08-5429.

United States Court of Appeals, District of Columbia Circuit.

Argued November 24, 2008.

Decided February 18, 2009.

Appeals from the United States District Court for the District of Columbia (No. 1:08-mc-00442).

Gregory G. Garre, Solicitor General, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Gregory G. Katsas, Assistant Attorney General, Jonathan F. Cohn, Deputy Assistant Attorney General, and Robert E. Kopp, Thomas M. Bondy, Anne Murphy, and Sharon Swingle, Attorneys. Scott R. McIntosh, Attorney, entered an appearance.

Sabin Willett argued the cause for appellees. With him on the brief were Rheba Rutkowski, Neil McGaraghan, Jason S. Pinney, Susan Baker Manning, George Clark, Eric A. Tirschwell, Michael J. Sternhell, Darren LaVerne, Seema Saifee, Elizabeth P. Gilson, J. Wells Dixon, and Angela C. Vigil.

Howard Schiffman was on the brief for amicus curiae Uyghur American Association in support of appellees.

Lucas Guttentag and Theodore D. Frank were on the brief of law professors as amici curiae, addressing Shaughnessy v. United States ex rel. Mezei and Clark v. Martinez, and supporting affirmance.

Alex Young K. Oh and Aziz Huq were on the brief for amici curiae Brennan Center for Justice at NYU School of Law, et al. in support of appellees.

David Overlock Stewart were on the brief for amici curiae Legal and Historical Scholars in support of appellees.

Thomas A. Gottschalk was on the brief for amici curiae National Immigration Justice Center, et al. in support of appellees.

Before: HENDERSON and ROGERS, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge RANDOLPH.

Opinion concurring in the judgment filed by Circuit Judge ROGERS.

RANDOLPH, Senior Circuit Judge:

Seventeen Chinese citizens currently held at Guantanamo Bay Naval Base, Cuba, brought petitions for writs of habeas corpus. Each petitioner is an ethnic Uighur, a Turkic Muslim minority whose members reside in the Xinjiang province of far-west China. The question is whether, as the district court ruled, petitioners are entitled to an order requiring the government to bring them to the United States and release them here.

Sometime before September 11, 2001, petitioners left China and traveled to the Tora Bora mountains in Afghanistan, where they settled in a camp with other Uighurs. Parhat v. Gates, 532 F.3d 834, 837 (D.C.Cir.2008). Petitioners fled to Pakistan when U.S. aerial strikes destroyed the Tora Bora camp. Id. Eventually they were turned over to the U.S. military, transferred to Guantanamo Bay and detained as "enemy combatants."¹

Evidence produced at hearings before Combatant Status Review Tribunals in Guantanamo indicated that at least some petitioners intended to fight the Chinese government, and that they had received firearms training at the camp for this purpose. See Parhat, 532 F.3d at 838, 843. The Tribunals determined that the petitioners could be detained as enemy combatants because the camp was run by the Eastern Turkistan Islamic Movement, a Uighur independence group the military believes to be associated with al Qaida or the Taliban, see id. at 844, and which the State Department designated as a terrorist organization three years after the petitioners' capture, see 69 Fed.Reg. 23,555-01 (April 29, 2004).

In the Parhat case, the court ruled that the government had not presented sufficient evidence that the Eastern Turkistan Islamic Movement was associated with al Qaida or the Taliban, or had engaged in hostilities against the United States or its coalition partners. Parhat, 532 F.3d at 850. Parhat therefore could not be held as an enemy combatant. The government saw no material differences in its evidence against the other Uighurs, and therefore decided that none of the petitioners should be detained as enemy combatants.

Releasing petitioners to their country of origin poses a problem. Petitioners fear that if they are returned to China they will face arrest, torture or execution. United States policy is not to transfer individuals to countries where they will be subject to mistreatment. Petitioners have not sought to comply with the immigration laws governing an alien's entry into the United States. Diplomatic efforts to locate an appropriate third country in which to resettle them are continuing. In the meantime, petitioners are held under the least restrictive conditions possible in the Guantanamo military base.

As relief in their habeas cases, petitioners moved for an order compelling their release into the United States. Although the district court assumed that the government initially detained petitioners in compliance with the law, In re Guantanamo Bay Detainee Litig., 581 F.Supp.2d 33, 37 (D.D.C. 2008) ("Mem.Op."), the court thought the government no longer had any legal authority to hold them, id. at 38. As to the appropriate relief, the court acknowledged that historically the authority to admit aliens into this country rested exclusively with the political branches. Id. at 39-40. Nevertheless, the court held that the "exceptional" circumstances of this case and the need to safeguard "an individual's liberty from unbridled executive fiat," justified granting petitioners' motion.² Id. at 40, 42.

Our analysis begins with several firmly established propositions set forth in Saavedra Bruno v. Albright, 197 F.3d 1153, 1158 (D.C.Cir.1999), from which we borrow. There is first the ancient principle that a nation-state has the inherent right to exclude or admit foreigners and to prescribe applicable terms and conditions for their exclusion or admission.³ This principle, dating from Roman times,⁴ received recognition during the Constitutional Convention⁵ and has continued to be an important postulate in the foreign relations of this country and other members of the international community.⁶

For more than a century, the Supreme Court has recognized the power to exclude aliens as "`inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers—a power to be exercised exclusively by the political branches of government'"⁷ and not "granted away or restrained on behalf of any one." The Chinese Exclusion Case, 130 U.S. 581, 609, 9 S.Ct. 623, 32 L.Ed. 1068 (1889). 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. See, e.g., Ekiu, 142 U.S. at 659, 12 S.Ct. 336; Fong Yue Ting v. United States, 149 U.S. 698, 713, 13 S.Ct. 1016, 37 L.Ed. 905 (1893); Lem Moon Sing v. United States, 158 U.S. 538, 543, 547, 15 S.Ct. 967, 39 L.Ed. 1082 (1895); Wong Wing v. United States, 163 U.S. 228, 237, 16 S.Ct. 977, 41 L.Ed. 140 (1896); Fok Young Yo v. United States, 185 U.S. 296, 302, 22 S.Ct. 686, 46 L.Ed. 917 (1902); Tiaco v. Forbes, 228 U.S. 549, 556-57, 33 S.Ct. 585, 57 L.Ed. 960 (1913); Hines, 312 U.S. at 62-64, 61 S.Ct. 399; United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 94 L.Ed. 317 (1950); Galvan v. Press, 347 U.S. 522, 530, 74 S.Ct. 737, 98 L.Ed. 911 (1954); Graham v. Richardson, 403 U.S. 365, 377, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Kleindienst, 408 U.S. at 765-66, 92 S.Ct. 2576; Mathews v. Diaz, 426 U.S. 67, 81, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); Fiallo, 430 U.S. at 792, 97 S.Ct. 1473; Reno v. Flores, 507 U.S. 292, 305-06, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Demore v. Kim, 538 U.S. 510, 521-22, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003).

With respect to the exclusive power of the political branches in this area, there is, as the Supreme Court stated in Galvan, "not merely `a page of history,' ... but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government." 347 U.S. at 531, 74 S.Ct. 737 (quoting N.Y. Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 65 L.Ed. 963 (1921)). Justice Frankfurter summarized the law as it continues to this day: "Ever since national States have come into being, the right of the people to enjoy the hospitality of a State of which they are not citizens has been a matter of political determination by each State"—a matter "wholly outside the concern and competence of the Judiciary." Harisiades, 342 U.S. at 596, 72 S.Ct. 512 (concurring opinion).

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." Knauff, 338 U.S. at 543, 70 S.Ct. 309. With respect to these seventeen petitioners, the Executive Branch has determined not to allow them to enter the United States.⁸ The critical question is: what law "expressly authorized" the district court to set aside the decision of the Executive Branch and to order these aliens brought to the United States and released in Washington, D.C.?

The district court cited no statute or treaty authorizing its order, and we are aware of none. As to the Constitution, the district court spoke only generally. The court said there were "constitutional limits," that there was some "constitutional imperative," that it needed to protect "the fundamental right of liberty." These statements suggest that the court may have had the Fifth Amendment's due process clause in mind. See Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). But the due process clause cannot support the court's order of release. Decisions of the Supreme Court and of this court—decisions the district court did not acknowledge—hold that the due...