Habeas Corpus: Vessel to Safe Harbor

Setting the stage for the next major challenge to the power of the President, this time Barack Obama rather than George W. Bush, the Supreme Court has agreed to consider whether a federal judge can order the release of Guantanamo Bay detainees into the United States. Kiyemba v. United States 08-1234

The case involves 13 Chinese Uighurs, captured in Pakistan and Afghanistan and imprisoned since 2002, whom American officials determined four years ago were not a threat to the United States. They cannot be safely returned to China because they are members of a Muslim separatist minority, who have been repressed by the central Chinese government. Bermuda has accepted four of them and the island of Palau another six but Congress and the President have refused to allow any detainees, who no longer are labeled "unlawful combatants," to settle in the United States.

Last year, U.S. District Judge Ricardo Urbina ruled that the "carte blanche authority the political branches purportedly wield over (the Uighurs) is not in keeping with our system of governance," adding that "our system of checks and balances is designed to preserve the fundamental right of liberty." Last February, a Court of Appeals reversed that decision, holding that it would intrude on the Executive branch's inherent authority to regulate immigration.

In Boumediene v. Bush (2008) the Supreme Court ruled that Guantanamo detainees have the right to file habeas corpus petitions challenging their indefinite detention. This time, the court will take the next step, figuring out whether a judicial remedy might include ordering their release into the United States, over the objections of Congress and the Obama Administration.

No one doubts, as Chief Justice John Marshall wrote in 1830, that the "great object" of the writ of habeas corpus "is the liberation of those who may be imprisoned without sufficient cause." But the Court of Appeals in Kiyemba ignored this fundamental principle and emasculated the ruling in Boumediene by invoking the facile notion that "[n]ot every violation of a right yields a remedy, even when the right is constitutional." The Court of Appeals was satisfied that while the detainees has a right to be released, if no country, including the United States, will offer them a safe home then it is entirely constitutional for them to remain forever in Guantanamo or the next such facility the United States establishes.

But our constitutional system is not so rigid and unsympathetic as the Court of Appeals would have us believe. In Marbury v. Madison (1803), the Supreme Court held that our government of laws not men "will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." And in Bell v. Hood (1946), the Supreme Court ruled that "where federally protected rights have invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief."

Cases relied on by the Court of Appeals for the proposition that an order to release the detainees into the United States would intrude on the political branches' plenary authority in the area of immigration, such as Shaughnessy v. United States, ex rel. Mezei (1953) are misapplied. There an alien was seeking voluntary entry into the United States under the immigration laws. Here, the detainees are not seeking to immigrate to the United States; they are seeking refuge from concededly unlawful custody as a last resort since no other country will take them. Unlike garden variety immigrants, these detainees were brought to Guantanamo against their will and kept in shackles for eight years, until they were found to be no threat to the United States. Indeed in Zadvydas v. Davis (2001) the Supreme Court struck down indefinite detention of un-removable non-citizens under the immigration laws in 2001.

Furthermore, the Executive branch's authority over immigration must be exercised consistent with fundamental constitutional limitations, including the provisions on habeas corpus. Since at least Chae Chan Ping v. United States (1889) the Supreme Court has held that authority over immigration is limited" by the constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations."

When the United States took into custody these 13 Chinese Uighurs and the other hundreds of detainees held at Guantanamo, our country assumed legal responsibility for all of them. The Bush Administration may have thought Guantanamo was a Constitution-free zone, but in Rasul v. Bush (2004) and more recently Boumediene, the Supreme Court pointed out the error in that assumption. It is now the duty and responsibility of our government to implement the appropriate remedy designed by the district court exercising its powers of habeas corpus to ensure admission of these detainees into the United States.

"The remaining Uighurs are not enemy combatants and therefore the executive branch lacks the authority to continue to detain them at Guantanamo," said Sharon Bradford Franklin, senior counsel for the Constitution Project, a bipartisan legal organization that filed a friend of the court brief in the case. "Courts must have the power to compel release in order for successful challenges to unlawful detention to have any meaning."

The Supreme Court has wisely agreed to review the Court of Appeals' decision in Kiyemba. Hopefully, the Supreme Court will again rise to the occasion to ensure that our federal courts fulfill the vision of the Founders. James Madison, in 1789, argued for the adoption of the Bill of Rights, because "independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights" and "an impenetrable bulwark against every assumption of power in the Legislature or the Executive" by resisting "every encroachment upon rights expressly stipulated for in the Constitution."

No more fundamental right was expressly stipulated in the Constitution than habeas corpus. In our system of laws, there must be a remedy for the wrong committed against these detainees. That remedy is to afford them safe harbor in the land, which adopted that Constitution in the first place.

Stephen Rohde, a constitutional lawyer, is Chair of the American Civil Liberties Union Foundation of Southern California and author of American Words of Freedom and Freedom of Assembly.