{"id":3100,"date":"2012-07-22T13:15:07","date_gmt":"2012-07-22T17:15:07","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/nsj\/?p=3100"},"modified":"2012-12-06T15:36:40","modified_gmt":"2012-12-06T20:36:40","slug":"restraining-habeas-boumediene-kiyemba-and-the-limits-of-remedial-authority","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2012\/07\/restraining-habeas-boumediene-kiyemba-and-the-limits-of-remedial-authority\/","title":{"rendered":"Restraining Habeas: Boumediene, Kiyemba, and the Limits of Remedial Authority"},"content":{"rendered":"

By Daniel J. Feith*<\/a><\/strong><\/h3>\n

Introduction<\/strong><\/h3>\n

On April 18, 2011, the Supreme Court denied certiorari in Kiyemba v. Obama<\/em>,[1]<\/a> closing\u2014at least for now[2]<\/a>\u2014the legal path to release for the three remaining Uighur detainees at the Guantanamo Bay Detention Camp.[3]<\/a> The immediate effect of the denial of certiorari seems clear. The Uighurs may accept an offer of resettlement in another country or remain at Guantanamo, but they may not be released into the United States under judicial[4]<\/a> or, for that matter, executive[5]<\/a> authority. Less clear is what the denial means for a question that goes beyond the fate of three Uighurs and to the heart of judicial power: ultimately, what remedial authority do federal habeas courts possess?<\/p>\n

The question\u2019s revival has come as something of a surprise to those who thought it was answered in Boumediene v. Bush<\/em>.[6]<\/a> Though criticized for lack of clarity,[7]<\/a> Boumediene<\/em> stated quite clearly: \u201cWe do hold that when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority . . . to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner\u2019s release.\u201d[8]<\/a> Several months after the Supreme Court issued Boumediene<\/em>, Judge Ricardo Urbina of the U.S. District Court for the District of Columbia applied Boumediene<\/em>\u2019s holding to the Uighurs and ordered their release into the United States.[9]<\/a><\/p>\n

Judge Urbina\u2019s ruling seemed consonant with the facts of the Uighurs\u2019 case and the letter of Boumediene<\/em>\u2019s holding. The Kiyemba<\/em> petitioners consisted of seventeen Uighurs captured in Afghanistan and imprisoned at Guantanamo since 2002.[10]<\/a> The government alleged that the Uighurs were members of an anti-Chinese terrorist group associated with the Taliban and Al Qaeda. Nevertheless, between 2003 and 2008, the government cleared the seventeen Uighurs for release, but had nowhere to release them. The normal measure of returning them home to China was foreclosed by fears that the Chinese would imprison and torture them. As a result, the Uighurs remained in detention as enemy combatants. That policy ceased being tenable, however, after the D.C. Circuit ordered the government to release one of the Uighur detainees, Huzaifa Parhat, because its evidence that he was an enemy combatant \u201clack[ed] sufficient indicia of . . . reliability.\u201d[11]<\/a> Since its evidence against the other Uighurs was not significantly different from that against Parhat, the government concluded that it could no longer detain any of the Uighurs as enemy combatants even as it continued to have nowhere to send them. Following Boumediene<\/em>, the Uighurs\u2019 habeas suits were consolidated for consideration by Judge Urbina, who granted their discharges and, in light of the lack of other options, ordered their release into the United States pending resettlement.[12]<\/a> He reasoned that ordering their release into the United States was necessary to effect the writ and \u201cpreserve the fundamental right of liberty.\u201d[13]<\/a><\/p>\n

The Uighurs\u2019 odyssey then took another twist. The Government appealed Judge Urbina\u2019s ruling to the D.C. Circuit, and while the appeal was pending, each of the Uighurs received an offer of resettlement from a foreign country, which the government communicated to the D.C. Circuit.[14]<\/a> The D.C. Circuit reversed Judge Urbina\u2019s decision.[15]<\/a> His order, it held, trenched upon \u201cthe exclusive power of the political branches to decide which aliens may, and which aliens may, enter the United States, and on what terms.\u201d[16]<\/a> A court may only review a decision by the political branches to exclude an alien if \u201c\u2018expressly authorized by law.\u2019\u201d[17]<\/a> Since the district court \u201ccited no statute or treaty authorizing its order,\u201d[18]<\/a> the D.C. Circuit held that it lacks the authority to review, let alone reverse, the government\u2019s decision to deny the Uighurs admission to the United States.[19]<\/a> That holding suggested an important corollary: that judicial remedial authority in habeas cases is not absolute.[20]<\/a> The D.C. Circuit reaffirmed its decision in its entirety one year later,[21]<\/a> after the Supreme Court vacated and remanded Kiyemba I<\/em> in light of new factual developments.[22]<\/a> That ruling leaves the Uighurs only two options: accept an offer of resettlement or remain at Guantanamo.<\/p>\n

Several commentators have argued that Kiyemba<\/em> conflicts with Boumediene<\/em>\u2019s mandate regarding remedial authority.[23]<\/a> Professor Jonathan Hafetz has written that Kiyemba<\/em> \u201cflatly contradicts the Supreme Court\u2019s decision in Boumediene v. Bush<\/em>.\u201d[24]<\/a> Judge Lawrence Silberman of the D.C. Circuit has warned that Kiyemba<\/em> could have the effect of transforming detainee habeas decisions into \u201cvirtual advisory opinions.\u201d[25]<\/a> Nevertheless, following the denial of certiorari, Kiyemba III<\/em> stands as the law of the D.C. circuit and, thus, as the law governing all Guantanamo litigation.[26]<\/a><\/p>\n

This article considers the Kiyemba <\/em>puzzle. Like Hafetz and other commentators, I try to measure the extent of remedial authority in light of Boumediene<\/em>. This article argues that Boumediene<\/em> represented a shift away from a \u201cModern\u201d understanding of habeas, which is based on the individual rights of the prisoner, and back towards a \u201cHistorical\u201d understanding, which is based on the jailer\u2019s authority. By situating Boumediene<\/em> in this historical tradition, I show that Kiyemba<\/em>\u2019s focus on institutional prerogatives and separation of powers concerns is faithful to Boumediene<\/em> and its animating principles. Furthermore, this interpretation of Boumediene<\/em> explains how, on the same day it asserted judicial power in Boumediene<\/em>, it could also issue a deferential opinion in Munaf v. Geren<\/em>.[27]<\/a> Boumediene<\/em>, in short, contained the means of its own restraint.<\/strong><\/p>\n

I.\u00a0\u00a0\u00a0 <\/strong>Kiyemba<\/em>, Boumediene<\/em>, and Two Understandings of Habeas<\/strong>
\n<\/em><\/strong><\/h3>\n

A.\u00a0\u00a0\u00a0 <\/em><\/strong>The Modern Understanding <\/em><\/strong><\/h4>\n

Kiyemba<\/em> is such a troubling decision in large part because it jars with what I call the \u201cModern Understanding\u201d of the writ of habeas corpus, according to which habeas is a vehicle for vindicating a litany of individual rights. The Modern Understanding is rooted in the federal Habeas Corpus Act of 1867,[28]<\/a> which authorized federal courts to grant writs of habeas corpus \u201cin all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States.\u201d[29]<\/a> The Act did more than simply expand federal jurisdiction. Whereas the Judiciary Act of 1789 directed habeas courts to \u201cinquir[e] into the cause of commitment,\u201d[30]<\/a> the 1867 Act reoriented habeas proceedings towards constitutional violations.[31]<\/a><\/p>\n

The proliferation of rights under the Fifth and Fourteenth Amendment\u2019s due process guarantees, [32]<\/a> in particular, has cemented the Modern Understanding of habeas.[33]<\/a> Justice Brennan summed up the deep linkage between habeas and due process in the public mind when he wrote, albeit inaccurately,[34]<\/a> that the \u201c[v]indication of due process is precisely [habeas\u2019s] historic office.\u201d[35]<\/a> The coupling of habeas and due process has led several scholars and judges to reason that if Boumediene<\/em> extended habeas to Guantanamo, it must have extended at least minimal due process rights as well.[36]<\/a> Nevertheless, Kiyemba I<\/em> held that \u201cthe due process clause does not apply to aliens without property or presence in the sovereign territory of the United States.\u201d[37]<\/a><\/p>\n

Despite its prominence, the Modern Understanding is conspicuously absent from the Boumediene<\/em> majority\u2019s opinion. Chief Justice Roberts\u2019 dissent highlights the degree to which the majority eschewed the Modern Understanding. The dissent criticized the Court for not \u201cbothering to say what due process rights the detainees possess\u201d and for not \u201cexplaining how the [Military Commissions Act] fails to vindicate those rights.\u201d[38]<\/a> Such criticism perfectly reflects a Modern conception of habeas corpus. To paraphrase Justice Brennan, if the writ\u2019s office is vindicating due process rights, then the central inquiry is what due process rights the detainees enjoy. After all, under Brennan\u2019s view, one cannot know whether the detainee \u201creview proceeding falls short of being a constitutionally adequate substitute,\u201d[39]<\/a> as the majority held, without first \u201cknowing what rights either habeas or the [Detainee Treatment Act] is supposed to protect,\u201d[40]<\/a> as the dissent insisted.<\/p>\n

Justice Souter\u2019s concurrence also reads as a rebuke to the majority for ignoring the individual rights at stake. Souter wrote that in extending the Suspension Clause to Guantanamo, \u201csomething much more significant is involved than pulling and hauling between the judicial and political branches. Instead, though, it is enough to repeat that some of these prisoners have spent six years behind bars.\u201d[41]<\/a> Without rejecting the majority\u2019s theory, Souter suggested it was not enough and risked ignoring what Justice Souter believed is an essential purpose of habeas review: to \u201cmean something of value both to prisoners<\/em> and to the Nation.\u201d[42]<\/a><\/em><\/strong><\/p>\n

B.\u00a0\u00a0\u00a0 <\/em><\/strong>The Historical Understanding<\/em><\/strong><\/h4>\n

In contrast with the Modern Understanding, what I call the \u201cHistorical Understanding\u201d sees habeas as a means of policing jailers\u2019 authority, not vindicating individuals\u2019 rights. These may seem like two sides of the same coin, except that, as Professor Goldstein has noted, \u201chabeas predates rights.\u201d[43]<\/a> Habeas transformed into the \u201cGreat writ of liberty\u201d in the hands of justices of King\u2019s Bench, England\u2019s highest common law court, intent on policing the royal prerogative[44]<\/a>\u2014and, in the process, consolidating judicial power.[45]<\/a> Although one finds hints of this trend in the late-fifteenth and sixteenth centuries, the transformation began, in earnest, in the early seventeenth century\u2014when the notion of individual rights that are legally enforceable against the state was only beginning to take shape.[46]<\/a> Habeas\u2019s focus on authority was\u2014and continues to be\u2014reflected in the writ\u2019s structure. The writ was addressed not to the prisoner who petitioned for it but to the prisoner\u2019s jailer, which is to say, to a franchise-holder. On receipt of the writ, the jailer was required to provide a return setting forth the grounds for imprisonment and the date and cause of arrest;[47]<\/a> in other words, the jailer had to show that he had exercised his franchise lawfully. This procedure placed the jailer\u2019s authority at the center of the habeas inquiry and made King\u2019s Bench the arbiter of the jailer\u2019s actions.[48]<\/a><\/p>\n

King\u2019s Bench\u2019s effort to consolidate power that had been diffused among a congeries of courts and administrators[49]<\/a> reflected a broader phenomenon: English habeas developed outside any framework of separated powers. Parliament, for example, was both a legislative and a judicial body. The House of Lords served as England\u2019s highest court, and even Parliament\u2019s legislative function was understood in judicial terms as the making of prospective judgments. Indeed, it was Parliament\u2019s status as \u201cthe highest court in the land\u201d that gave it authority to regulate King\u2019s Bench through such legislation as the Habeas Corpus Act of 1679.[50]<\/a> King\u2019s Bench, likewise, laid claim to broad common law authority to expand its jurisdiction and develop available remedies.[51]<\/a> In the habeas context, the embrace by King\u2019s Bench of an equitable approach was evident in such cases as that of Ralph Brooke, a deadbeat husband imprisoned by an ecclesiastical court for defying its order to live with and support his wife. King\u2019s Bench not only ordered his release but also directed Brooke to pay his wife alimony.[52]<\/a> Finally, overlapping personnel among King\u2019s Bench, the Privy Council, and Parliament corresponded to the overlapping functions of these bodies.[53]<\/a><\/p>\n

This history required the Framers to make certain modifications to habeas to adapt it to our constitutional order. If habeas was understood by the Framers as one of the \u201cgreater securities to liberty\u201d provided for by the Constitution,[54]<\/a> the separation of powers was understood as the greatest.[55]<\/a> Like any grant of power, habeas would need to respect the division of authority established by the Constitution; American courts could not invoke royal prerogative as an unlimited font of power. Chief Justice Marshall recognized this limitation on the judicial power in Ex Parte Bollman<\/em>.[56]<\/a> Rejecting Bollman\u2019s claim that \u201cthe power of issuing writs of habeas corpus<\/em>. . . is one of those inherent powers, bestowed by the law upon every superior court of record, as incidental to its nature, for the protection of the citizen,\u201d[57]<\/a> Marshall\u2014hardly an opponent of judicial assertiveness[58]<\/a>\u2014nevertheless drew a distinction between the English and American judiciaries. He held, \u201cCourts which originate in the common law possess a jurisdiction which must be regulated by their common law\u2026; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction.\u201d[59]<\/a> Thus, Marshall concluded, \u201cthe power to award the writ [of habeas corpus] by any of the courts of the United States, must be given by written law\u201d[60]<\/a>\u2014which, he further held, it had been.<\/p>\n

Ex Parte Bollman<\/em> represents a modest conception of the judicial power as limited by the authority of coordinate branches of government. Although aspects of Bollman<\/em> are much criticized,[61]<\/a> and St. Cyr<\/em>[62]<\/a> and Boumediene<\/em> cast doubt on Marshall\u2019s view that the Suspension Clause does not independently confer habeas jurisdiction on courts,[63]<\/a> even Bollman<\/em>\u2019s critics do not dispute Marshall\u2019s rejection of an inherent<\/em> judicial power to issue the writ. Instead, they simply challenge his view that the Constitution, through the Suspension Clause, does not grant that power. Thus, Bollman<\/em> highlights that even as the Court was expanding the use of habeas corpus, it was doing so in a way that respected the boundaries between its authority and that of its coordinate branches.<\/p>\n

The Boumediene<\/em> majority embraced the Historical Understanding of habeas. Without reaching the thorny question of whether detainees have substantive rights independent of habeas,[64]<\/a> the Court focused exclusively on the relationship between the Suspension Clause and separation of powers in holding that Guantanamo detainees must be able to challenge their detention. Justice Kennedy\u2019s opinion began by reviewing the history of habeas corpus. Ultimately, it \u201cdecline[d] . . . to infer too much\u201d[65]<\/a> about the scope<\/em> of habeas from that survey, but it did draw a conclusion from it about the purpose <\/em>of habeas corpus and the Suspension Clause. Kennedy wrote that the writ enables the Judiciary \u201cto maintain the delicate balance of governance that is the surest safeguard of liberty,\u201d while the Suspension Clause ensures that \u201cexcept during periods of formal suspension,\u201d the writ will be available to the courts.[66]<\/a> In other words, Justice Kennedy\u2019s opinion understood the Suspension Clause primarily as protecting the separation of powers in our constitutional structure.<\/p>\n

That understanding, with its focus on power structures rather than rights, guided the Boumediene<\/em> Court as it turned to analyzing whether the Suspension Clause applies to territories outside formal American sovereignty. The Court rejected the Government\u2019s de jure<\/em> sovereignty-based test for two related reasons. First, it feared how that test would affect the political branches\u2019 power vis-\u00e0-vis the Constitution, explaining that by manipulating sovereignty, the political branches would gain \u201cthe power to switch the Constitution on or off.\u201d[67]<\/a> Second, the Court feared how that test would affect the political branches\u2019 power vis-\u00e0-vis the Judiciary. Power to determine where the Constitution applies \u201cwould permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say \u2018what the law is.\u2019\u201d[68]<\/a> These broader concerns about maintaining constitutional limits on the political branches\u2019 power and protecting the Judiciary\u2019s role in enforcing those limits converged in the Court\u2019s conclusion that \u201cthe writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.\u201d[69]<\/a> It is important to note how distinct this formulation is from one that views habeas primarily through the lens of rights. Rights limit how all three branches of government exercise their authority. The Boumediene<\/em> Court, however, saw habeas not in terms of protecting individuals against the abuses of all three branches but in terms of restraining the authority of the two political branches\u2014potentially wherever they operated. This is precisely the Historical Understanding of habeas, filtered through constitutional separation of powers.[70]<\/a><\/p>\n

II. The Doctrinal Coherence of Boumediene<\/em> and Kiyemba<\/em><\/strong><\/h3>\n

Judged according to the Modern Understanding of habeas, Kiyemba<\/em> is a troubling decision. Its facts and law challenge the Modern Understanding\u2019s core principles. The Modern Understanding marries habeas with due process rights; Kiyemba <\/em>decouples them. The Modern Understanding sees vindicating those rights as the writ\u2019s core purpose; the Kiyemba<\/em> petitioners remain confined three years after the government conceded it lacked authority to detain them.[71]<\/a> Whereas the Modern Understanding conceives of habeas corpus as a remedy to unlawful imprisonment, Kiyemba<\/em> limits the remedial authority of habeas courts even at the price of the Uighurs\u2019 freedom. These tensions, moreover, seem to place Kiyemba <\/em>in conflict with Boumediene<\/em>\u2019s holding that the judicial power to issue habeas must include authority \u201cto formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release.\u201d[72]<\/a> In this Section, I argue that contrary to initial appearances, Kiyemba<\/em> and Boumediene<\/em> are doctrinally coherent.[73]<\/a> Whatever its normative appeal, the Modern Understanding misapprehends Boumediene<\/em>, which emphasized, above all, that the purpose of habeas is to preserve the separation of powers. The remainder of this Section demonstrates how Kiyemba <\/em>is faithful to that imperative.<\/p>\n

Part of the difficulty in determining whether Kiyemba<\/em>\u2019s view of limited judicial remedial authority comports with Boumediene<\/em> is that the Boumediene<\/em> Court itself hedged in stating what remedial authority is constitutionally required. The Court noted that habeas is, \u201cabove all, an adaptable remedy\u201d[74]<\/a> and that \u201crelease need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted.\u201d[75]<\/a> On the other hand, the Court categorically declared that \u201cthe habeas court must<\/em> have the power to order the conditional release of an individual unlawfully detained.\u201d[76]<\/a> It even described this imperative as a holding.[77]<\/a> Can Kiyemba<\/em> be squared with this holding?<\/p>\n

Boumediene<\/em>\u2019s holding regarding remedial authority ought to be contextualized within its larger discussion of the purpose of habeas corpus. As described in Section I.B, Boumediene <\/em>understood habeas corpus primarily as an instrument for preserving the \u201cdelicate balance of governance . . . \u201d\u2014which is to say, the separation of powers\u2014\u201cthat is itself the surest safeguard of liberty.\u201d[78]<\/a> Notwithstanding the common charge that Boumediene <\/em>is a \u201csweeping assertion of judicial supremacy,\u201d[79]<\/a> the majority understood its assertion of authority in defensive terms. It viewed the government\u2019s claim that formal sovereignty determines the Suspension Clause\u2019s application as an overreach of the political branches\u2019 proper authority at the expense of the Court\u2019s power.[80]<\/a> Its rejection of that position aimed to restore constitutional balance.<\/p>\n

Thus, Boumediene<\/em>\u2019s understanding of habeas is\u2014pace Professor Calabresi\u2014as a common law for the age of the Constitution. That is, Boumediene<\/em> understood habeas according to pre-1789 English common law, but with the modifications necessary to make habeas work within a constitutional framework of separated powers. The judicial power, in particular, changed from the common law to the Constitution. Article III replaced the king\u2019s prerogative as the source of courts\u2019 authority.[81]<\/a> Instead of having the run of the road, as in England, the American judiciary must stay in its lane.<\/p>\n

Boumediene<\/em> emphasized this obligation only vis-\u00e0-vis the political branches, but that is because in that instance, the Court thought the political branches were trenching on judicial authority, not vice-versa. It would be absurd to read Boumediene<\/em>, which invoked the separation of powers more than ten times,[82]<\/a> to exempt the judiciary from the obligation to respect the inter-branch boundaries of power.[83]<\/a> Therefore, insofar as remedial authority in habeas cases is a subset of judicial power, that obligation should inform our understanding of Boumediene<\/em>\u2019s command that habeas courts \u201cmust have the power to order the conditional release of an individual unlawfully detained.\u201d In other words, remedial authority\u2014like judicial power generally\u2014must respect the coordinate branches\u2019 prerogatives.<\/p>\n

This point is especially relevant to Kiyemba<\/em>. Professor Stephen Vladeck has suggested that if the D.C. Circuit had \u201ctak[en] seriously the flexibility of the writ as a means of promoting equity,\u201d it would have found it within its authority \u201cto order the government to release the prisoner within a specified, finite period of time, and to sanction the government if it failed to do so.\u201d[84]<\/a> Such arguments about the equitable nature of the Great Writ, however, beg the question of the constitutional limits on the authority of a habeas court to fashion an equitable remedy. The D.C. Circuit faced precisely that question in Kiyemba<\/em>. Ordering the detainees\u2019 release into the United States, thereby fulfilling Boumediene<\/em>\u2019s letter, would encroach on the \u201cexclusive province of the political branches\u201d[85]<\/a> to control entry at our borders, thereby violating Boumediene<\/em>\u2019s logic. By holding that it lacked the power to issue such an order, the Kiyemba<\/em> Court reconciled Boumediene<\/em>\u2019s letter to its logic.<\/p>\n

Kiyemba<\/em>\u2019s recognition that the separation of powers limits habeas courts\u2019 remedial authority also accords with the Supreme Court\u2019s ruling on Munaf v. Geren<\/em>,[86]<\/a> a case decided the same day as Boumediene<\/em>. Munaf<\/em> involved two American citizens arrested and detained by the U.S. military in Iraq who filed habeas petitions to prevent their transfer to Iraqi authorities to stand trial for alleged crimes, citing the risk of torture.[87]<\/a> In a unanimous opinion, the Court held that the petitioners are entitled to habeas but denied them relief. Rejecting petitioners\u2019 fear of torture as grounds for relief, the Court \u201crecognized that it is for the political branches, not the Judiciary, to assess practices in foreign countries and to determine national policy in light of those circumstances.\u201d[88]<\/a> Munaf<\/em>, in other words, recognized that even the authority of habeas courts has limits. Reading Boumediene <\/em>together with Munaf <\/em>reinforces the validity of Kiyemba<\/em>\u2019s conclusion that its remedial authority must respect the prerogatives of its coordinate branches of government.[89]<\/a><\/p>\n

Conclusion<\/h3>\n

This article has argued that, contrary to the claim that Kiyemba <\/em>and Boumediene<\/em> present conflicting views of habeas courts\u2019 remedial authority, the two cases are actually consistent. Boumediene<\/em> departed from the modern, prisoner-focused, rights-based understanding of habeas and embraced an understanding focused on the legality of the jailer\u2019s authority. Rooted in the English common law, this Historical Understanding views habeas in the American constitutional context primarily as an instrument for preserving the separation of powers. This understanding underpinned the Boumediene <\/em>Court\u2019s assertion that the Suspension Clause reaches Guantanamo\u2014a ruling widely derided as an assertion of judicial supremacy. Yet this understanding also compelled the Kiyemba<\/em> Court\u2019s recognition of limits to its remedial authority\u2014a holding widely derided as an act of judicial abdication. There is a further irony to Boumediene<\/em>\u2019s Historical Understanding: the impoverishment of the very writ it celebrated. By placing the political branches\u2019 authority at the center of the habeas inquiry, the Historical Understanding cuts detainees and their rights out of the analysis. It is now possible, as in Kiyemba<\/em>, to fulfill the writ\u2019s core purpose\u2014assessing the lawfulness of detention\u2014without fashioning a remedy. From a systemic perspective, this may be fine. From the detainees\u2019 perspective, it is devastating. Kiyemba <\/em>identifies troubling limits to the Great Writ\u2019s remedial power, but they are limits of the Supreme Court\u2019s own making.<\/p>\n

 <\/p>\n


<\/p>\n
\n
\n

*<\/a> J.D., Yale Law School, 2012<\/p>\n<\/div>\n

\n

[1]<\/a> Kiyemba v. Obama, 131 S. Ct. 1631 (2011).<\/p>\n<\/div>\n

\n

[2]<\/a> See<\/em> id. <\/em>at 1631\u201332 (Breyer, J.) (stating that \u201c[u]nder present circumstances, I see no Government-imposed obstacle to petitioners\u2019 timely release and appropriate resettlement. Accordingly, I join in the Court\u2019s denial of certiorari. Should circumstances materially change, however, petitioners may of course raise their original issue (or related issues) again in the lower courts and in this Court\u201d).<\/p>\n<\/div>\n

\n

[3]<\/a> Although there were five Uighurs held at Guantanmo at the time of the ruling, the Department of Defense recently announced that it had settled two of the Uighurs to El Salvador. See <\/em>Jane Sutton, Two Guantanamo Uighur Prisoners Head to El Salvador<\/em>, Reuters, Apr. 19, 2012, http:\/\/www.reuters.com\/article\/2012\/04\/19\/us-usa-guantanamo-salvador-idUSBRE83I1HA20120419<\/a>.<\/p>\n<\/div>\n

\n

[4]<\/a> See <\/em>Kiyemba v. Obama (Kiyemba I<\/em>), 555 F.3d 1022, 1028\u201329 (D.C. Cir. 2009), vacated to consider new facts<\/em>, 130 S. Ct. 1235 (2010).<\/p>\n<\/div>\n

\n

[5]<\/a> In a series of appropriations bills and riders since 2009, Congress has prohibited the use of any federal funds to bring Guantanamo detainees into the United States. For a list of acts blocking funds, see Kiyemba v. Obama<\/em> (Kiyemba III<\/em>), 605 F.3d 1046, 1048 (D.C. Cir. 2010) (per curiam).<\/p>\n<\/div>\n

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[6]<\/a> 553 U.S. 723 (2008). For a discussion of the disappointment among Boumediene<\/em>\u2019s supporters about the course of Guantanamo litigation since that decision, see, for example, Muneer I. Ahmad, Resisting Guantanamo: Rights at the Brink of Dehumanization<\/em>, 103 Nw. U. L. Rev. 1683, 1684\u201386 (2009), and Editorial, A Right Without a Remedy<\/em>, N.Y. Times, Mar. 1, 2011, at A26 (criticizing the D.C. Circuit for having \u201call but nullified [Boumediene<\/em>\u2019s] view of judicial power and responsibility\u201d).<\/p>\n<\/div>\n

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[7]<\/a> See, e.g.<\/em>, Stephen I. Vladeck, The New Habeas Revisionism<\/em>, 124 Harv. L. Re v. 941, 969 (2011) (reviewing Paul D. Halliday, Habeas Corpus: From England to Empire (2010)).<\/p>\n<\/div>\n

\n

[8]<\/a> Boumediene<\/em>, 553 U.S. at 787.<\/p>\n<\/div>\n

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[9]<\/a> See In re<\/em> Guantanamo Bay Detainee Litig., 581 F. Supp. 2d 33, 34 (D.D.C. 2008).<\/p>\n<\/div>\n

\n

[10]<\/a> See generally id.<\/em> (providing the factual and procedural background to the case).<\/p>\n<\/div>\n

\n

[11]<\/a> Parhat v. Gates, 532 F.3d 834, 836 (D.C. Cir. 2008).<\/p>\n<\/div>\n

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[12]<\/a> See In re<\/em> Guantanamo Bay Detainee Litig., 581 F. Supp. 2d at 34.<\/p>\n<\/div>\n

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[13]<\/a> Id. <\/em>at 43.<\/p>\n<\/div>\n

\n

[14]<\/a> The case\u2019s subsequent procedural history ended with the Supreme Court denying certiorari to the D.C. Circuit\u2019s decision in Kiyemba III<\/em>, which re-instated its original opinion in Kiyemba I<\/em>. Kiyemba v. Obama (Kiyemba III<\/em>), 605 F.3d 1046, 1048 (D.C. Cir. 2010) (per curiam). By the time of Kiyemba III<\/em>, twelve Uighurs had accepted offers of resettlement. The D.C. Circuit noted, with evident pique, that the remaining five Uighurs had rejected three resettlement offers. Id.<\/em> at 1047.<\/p>\n<\/div>\n

\n

[15]<\/a> Kiyemba v. Obama (Kiyemba I<\/em>), 555 F.3d 1022, 1025 (D.C. Cir. 2009).<\/em><\/p>\n<\/div>\n

\n

[16]<\/a> Id.<\/em><\/p>\n<\/div>\n

\n

[17]<\/a> Id.<\/em> at 1026 (quoting United States ex rel. <\/em>Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950))<\/p>\n<\/div>\n

\n

[18]<\/a> Id.<\/em><\/p>\n<\/div>\n

\n

[19]<\/a> Id.<\/em> at 1029.<\/p>\n<\/div>\n

\n

[20]<\/a> For further discussion of the D.C. Circuit\u2019s decision, see infra<\/em> Part III.<\/p>\n<\/div>\n

\n

[21]<\/a> Kiyemba III<\/em>, 605 F.3d 1046 (D.C. Cir. 2010) (per curiam).<\/p>\n<\/div>\n

\n

[22]<\/a> See<\/em> Kiyemba v. Obama, 130 S. Ct. 1235 (2010).<\/p>\n<\/div>\n

\n

[23]<\/a> See, e.g.<\/em>, Baher Azmy, Executive Detention, <\/em>Boumediene, and the New Common Law of Habeas<\/em>, 95 Iowa L. Rev. 445, 513 (2010); Caroline Wells Stanton, Current Development, Rights and Remedies: Meaning Habeas Corpus in Guantanamo<\/em>, 23 Geo. J. Legal Ethics 891 (2010); Editorial, supra <\/em>note 5.<\/p>\n<\/div>\n

\n

[24]<\/a> Jonathan Hafetz, The Unraveling of <\/em>Boumediene: Habeas Still a Right Without a Remedy<\/em>, Balkinization (Apr. 18, 2011, 12:36 PM), http:\/\/balkin.blogspot.com\/2011\/04\/unraveling-of-boumediene-habeas-still_18.html<\/a>; see also<\/em> Lyle Denniston, \u201c<\/em>Kiyemba III\u201d Reaches Court<\/em>, SCOTUSblog (Dec. 8, 2010, 4:27 PM), http:\/\/www.scotusblog.com\/2010\/12\/kiyemba-iii-reaches-court\/<\/a> (describing the Kiyemba III <\/em>cert petition as a \u201cdramatic bid for the Supreme Court to protect anew the independent power of the federal courts\u201d).<\/p>\n<\/div>\n

\n

[25]<\/a> Esmail v. Obama, No. 10-5282, 2011 U.S. App. LEXIS 7136, at *9 (D.C. Cir. Apr. 8, 2011) (Silberman, J., concurring).<\/p>\n<\/div>\n

\n

[26]<\/a> See <\/em>Boumediene v. Bush, 553 U.S. 723, 796 (2008) (allowing the Government to litigate all Guantanamo detainee cases in the United States District Court for the District of Columbia).<\/p>\n<\/div>\n

\n

[27]<\/a> 553 U.S. 674 (2008).<\/p>\n<\/div>\n

\n

[28]<\/a> Act of Feb. 5, 1867, ch. 28, 14 Stat. 385.<\/p>\n<\/div>\n

\n

[29]<\/a> Id<\/em>.<\/p>\n<\/div>\n

\n

[30]<\/a> Judiciary Act of 1789, ch. 20, \u00a7 14, 1 Stat. 73, 82.<\/p>\n<\/div>\n

\n

[31]<\/a> Professor Goldstein explains that this reorientation \u201cshift[ed] the judiciary inquiry from whether detention is authorized<\/em> to whether it is prohibited<\/em>.\u201d Jared A. Goldstein, Habeas Without Rights<\/em>, 2007 Wisc. L. Rev. 1165, 1198.<\/p>\n<\/div>\n

\n

[32]<\/a> See <\/em>U.S. Const. amend. V; id.<\/em> amend. XIV, \u00a7 1.<\/p>\n<\/div>\n

\n

[33]<\/a> See, e.g.<\/em>, Miranda v. Arizona, 384 U.S. 436 (1966); Brady v. Maryland, 373 U.S. 83 (1963); Gideon v. Wainwright, 372 U.S. 335 (1963).<\/p>\n<\/div>\n

\n

[34]<\/a> See infra<\/em> Section I.B and accompanying text.<\/p>\n<\/div>\n

\n

[35]<\/a> Fay v. Noia, 372 U.S. 391, 402 (1963); see also<\/em> David Cole, Jurisdiction and Liberty: Habeas Corpus and Due Process as Limits on Congress\u2019s Control of Federal Jurisdiction<\/em>, 86 Geo. L.J. 2481, 2502 (1998) (\u201cThe Constitution\u2019s guarantees of the writ of habeas corpus and of due process are closely interconnected.\u201d); Joshua Alexander Geltzer, Of Suspension, Due Process, and Guantanamo: The Reach of the Fifth Amendment After <\/em>Boumediene and the Relationship Between Habeas Corpus and Due Process<\/em>, 14 U. Pa. J. Const. L. 719, 748 (2012) (describing the \u201cprevailing assumption . . . that habeas and due process generally stand or fall together\u201d); Amanda L. Tyler, Is Suspension a Political Question?<\/em>, 59 Stan. L. Rev. 333, 386 (2006) (describing habeas as a \u201cdue process right\u201d).<\/p>\n<\/div>\n

\n

[36]<\/a> See, e.g.<\/em>, Azmy, supra <\/em>note 23, at 513\u201314; see also <\/em>Kiyemba v. Obama, 561 F.3d 509, 518 n.4 (D.C. Cir. 2009) (Kavanaugh, J., concurring) (noting the detainees\u2019 argument \u201cthat they must possess due process rights if they have habeas rights\u201d); cf. <\/em>Boumediene v. Bush, 476 F.3d 981, 983 (D.C. Cir. 2007) (\u201cThere is the notion that the Suspension Clause is different from the Fourth, Fifth, and Sixth Amendments because it does not mention individuals and those amendments do . . . . That cannot be right.\u201d). See generally<\/em> Geltzer, supra <\/em>note 35 (discussing five ways to understand the relationship between the Suspension and Due Process Clauses). Judge Rogers\u2019s concurrence in Kiyemba III<\/em> can be read to endorse that view implicitly. Kiyemba v. Obama, 605 F.3d 1046, 1051 (D.C. Cir. 2010) (Rogers, J., concurring) (\u201cWhatever role due process . . . might play with regard to granting the writ, petitioners cite no authority that due process . . . confer[s] a right of release in the continental United States when an offer of resettlement abroad in an \u2018appropriate\u2019 country is made in good faith and remains available.\u201d).<\/p>\n<\/div>\n

\n

[37]<\/a> Kiyemba v. Obama, 555 F.3d 1022, 1026 (D.C. Cir. 2009).<\/p>\n<\/div>\n

\n

[38]<\/a> Boumediene v. Bush, 553 U.S. 723, 801 (2008) (Roberts, C.J., dissenting).<\/p>\n<\/div>\n

\n

[39]<\/a> Id.<\/em> at 789.<\/p>\n<\/div>\n

\n

[40]<\/a> Id.<\/em> at 813.<\/p>\n<\/div>\n

\n

[41]<\/a> Id. <\/em>at 800\u201301 <\/em>(Souter, J., concurring). Souter\u2019s rebuke is only partly fair. The majority did consider the detainees\u2019 lengthy imprisonment, see, e.g.<\/em>, id.<\/em> at 772, but it did so mainly outside its analysis of the Suspension Clause.<\/p>\n<\/div>\n

\n

[42]<\/a> Id.<\/em> at 801 (Souter, J., concurring) (emphasis added).<\/p>\n<\/div>\n

\n

[43]<\/a> Goldstein, supra <\/em>note 31, at 1169.<\/p>\n<\/div>\n

\n

[44]<\/a> The royal \u201cprerogative\u201d referred to the English king\u2019s powers as exercised by officials acting in his name. The theory of royal power obligated the king to protect his subjects against abuses of his prerogative, and the habeas writ was a means of providing that protection. Paul D. Halliday & G. Edward White, The Suspension Clause: English Text, Imperial Contexts, and American Implications<\/em>, 94 Va. L. Rev. 575, 586\u201387, 600\u201307 (2008).<\/p>\n<\/div>\n

\n

[45]<\/a> Id. <\/em>at 598\u2013600.<\/p>\n<\/div>\n

\n

[46]<\/a> See<\/em> Goldstein, supra <\/em>note 31, at 1182.<\/p>\n<\/div>\n

\n

[47]<\/a> See <\/em>Halliday & White, supra<\/em> note 44, at 631 n.158. The latter two pieces of information were not originally part of the return but were added in 1628 by the Petition of Right. Id.<\/em><\/p>\n<\/div>\n

\n

[48]<\/a> See, e.g.<\/em>, Opinion on the Writ of Habeas Corpus, (1758) 97 Eng. Rep. 29 (K.B.) 43 (ordering a jailer to \u201c[t]ell the reason why you confine [the prisoner]. The Court will determine whether it is a good or bad reason\u201d) (internal quotation marks omitted).<\/p>\n<\/div>\n

\n

[49]<\/a> In addition to the five central courts of King\u2019s Bench, Common Pleas, Exchequer, Chancery, and Star Chamber, see<\/em> John H. Langbein et al., History of the Common Law: The Development of Anglo-American Legal Institutions 574\u201376 (2009), hundreds of ecclesiastical, civil, and common law courts spread throughout the country administered justice. Many operated according to their own rules. See <\/em>Halliday, supra <\/em>note 7, at 19\u201320. All the courts, like all administrators and legislators, derived their authority from a single source: the royal prerogative. See id. <\/em>at 41\u201342.<\/p>\n<\/div>\n

\n

[50]<\/a> See <\/em>Halliday, supra <\/em>note 7, at 20\u201321.<\/p>\n<\/div>\n

\n

[51]<\/a> Lord Chancellor Ellesmere, who presided over the Court of Chancery, England\u2019s great court of equity, wrote with alarm about the \u201cexcesse of authoritye\u201d claimed by King\u2019s Bench, his court\u2019s main rival. He went on: \u201cFor if the King\u2019s Bench may reform any manner of misgovernment\u2026it seemeth that there is little or no use either of the King\u2019s Royal care and authority exercised in his person, and by his proclamations, ordinances, and immediate directions, nor of the council table . . . .\u201d \u2018The Lord Chancellor Ergertons Observacions upon ye Lord Cookes Reportes\u2019 (1615)<\/em>, in<\/em> Louis A. Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere 297, 307\u201308 (1977). Ellesmere penned these words in 1615, the very year in which the use by King\u2019s Bench of a habeas writ to free a prisoner jailed by Chancery precipitated a major confrontation between equity and common law in Glanvile\u2019s Case, (1615) 72 Eng. Rep. 939 (K.B.); see also<\/em> Halliday, supra <\/em>note 7, at 90\u201391 (describing the facts of the case); Langbein et al., supra<\/em> note 48, at 329\u201333 (discussing the competition between Chancery and King\u2019s Bench for judicial supremacy).<\/p>\n<\/div>\n

\n

[52]<\/a> See<\/em> Brokes Case, (1615) 72 Eng. Rep. 940 (K.B.). For further discussion of the equitable nature of the writ of habeas corpus, see Halliday, supra<\/em> note 7, at 87\u201393.<\/p>\n<\/div>\n

\n

[53]<\/a> See<\/em> Halliday, supra <\/em>note 7, at 27.<\/p>\n<\/div>\n

\n

[54]<\/a> The Federalist No. 84, at 479 (Alexander Hamilton) (Clinton Rossiter ed., 1999).<\/p>\n<\/div>\n

\n

[55]<\/a> See generally<\/em> Federalist No. 51 (James Madison) (stressing the \u201cessential\u201d role of separated powers and checks and balances in preserving liberty).<\/p>\n<\/div>\n

\n

[56]<\/a> 8 U.S. (4 Cranch) 75 (1807).<\/p>\n<\/div>\n

\n

[57]<\/a> Id.<\/em> at 80.<\/p>\n<\/div>\n

\n

[58]<\/a> Cf.<\/em> Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (\u201cIt is emphatically the province and duty of the judicial department to say what the law is.\u201d).<\/p>\n<\/div>\n

\n

[59]<\/a> Bollman<\/em>, 8 U.S. at 93.<\/p>\n<\/div>\n

\n

[60]<\/a> Id.<\/em> at 94.<\/p>\n<\/div>\n

\n

[61]<\/a> See, e.g.<\/em>, William F. Duker, <\/em>A Constitutional History of Habeas Corpus 137\u201341 (1980); Eric M. Freedman, Habeas Corpus: Rethinking the Great Writ of Liberty 29\u201341 (2001) (cataloguing a list of errors in Bollman<\/em>).<\/p>\n<\/div>\n

\n

[62]<\/a> INS v. St. Cyr, 533 U.S. 289, 301 (2001).<\/p>\n<\/div>\n

\n

[63]<\/a> See, e.g.<\/em>, Azmy, supra <\/em>note 22, at 486 (raising \u201cthe possibility that Marshall\u2019s view of the Suspension Clause as non-self-executing is no longer viable in the federal-detention context\u201d); Richard H. Fallon, Jr. et al., Hart and Wechsler\u2019s The Federal Courts and the Federal System 1162 (6th ed. 2009) (describing St. Cyr <\/em>and Boumediene<\/em> as establishing that \u201cthe Suspension Clause does not merely limit congressional power to suspend the writ but also confers an affirmative right to habeas corpus review\u201d).<\/p>\n<\/div>\n

\n

[64]<\/a> In this respect, Boumediene<\/em> differed from an earlier lower court decision invalidating review procedures for Guantanamo detainees, see In re <\/em>Guantanamo Detainee Cases, 355 F. Supp. 443, 481 (D.D.C. 2005) (holding that \u201cpetitioners have stated valid claims under the Fifth Amendment<\/em>\u201d), and ignored the arguments of the Boumediene<\/em> petitioners. See<\/em> Brief for Petitioners at 44\u201350, Boumediene v. Bush, 553 U.S. 723 (2008) (No. 06-1195) 2007 WL 2441590 at *31\u201337 (arguing that \u201c[h]abeas relief is independently warranted because Petitioners’ detention violates the Fifth Amendment\u201d).<\/p>\n<\/div>\n

\n

[65]<\/a> Boumediene v. Bush, 553 U.S. 723, 752 (2008).<\/p>\n<\/div>\n

\n

[66]<\/a> Id. <\/em>at 745. Although the opinion does state that the Suspension Clause \u201cprotects the rights of the detained,\u201d id<\/em>., that function is ancillary to the Court\u2019s analysis. Cf. <\/em>Geltzer, supra <\/em>note 34, at *45 (\u201cTo be sure, the Suspension Clause has clear implications for protecting individual rights . . . [b]ut implications are different from essences . . . .\u201d).<\/p>\n<\/div>\n

\n

[67]<\/a> Boumediene<\/em>, 553 U.S. at 755.<\/p>\n<\/div>\n

\n

[68]<\/a> Id.<\/em> (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).<\/p>\n<\/div>\n

\n

[69]<\/a> Id.<\/em> at 755\u201356.<\/p>\n<\/div>\n

\n

[70]<\/a> Accord<\/em> Vladeck, supra <\/em>note 7, at 969 n.135 (observing that even if English habeas was not about the separation of powers, it \u201ctakes on separation of powers undertones when viewed in light of America\u2019s divided constitutional system\u201d).<\/p>\n<\/div>\n

\n

[71]<\/a> Since conceding that it lacked authority to detain the Uighurs as enemy combatants, the government has kept them \u201cunder the least restrictive conditions possible\u201d at Guantanamo. Kiyemba I<\/em>, 555 F.3d 1022, 1024 (D.C. Cir. 2009). Those conditions include access to various forms of entertainment and outdoor recreation, but the Uighurs cannot leave the detention camp. See<\/em> Warren Richey, Chinese Muslims Stay Stranded at Guant\u00e1namo<\/em>, CSMonitor.com (Feb. 20, 2009), http:\/\/www.csmonitor.com\/USA\/Justice\/2009\/0220\/p02s01-usju.html<\/a>.<\/p>\n<\/div>\n

\n

[72]<\/a> Boumediene<\/em>, 553 U.S. at 787.<\/p>\n<\/div>\n

\n

[73]<\/a> There is a separate question, alluded to though not considered in this article, of whether Kiyemba<\/em>\u2019s holding that the Fifth Amendment does not apply to Guantanamo detainees is consistent with Boumediene<\/em>. The Kiyemba<\/em> Court understood Boumediene<\/em>\u2019s holding as \u201cspecifically limited . . . to the Suspension Clause.\u201d Kiyemba I<\/em>, 555 F.3d at 1032. Several commentators, however, argue that Boumediene<\/em> should be interpreted more broadly to extend constitutional rights extraterritorially whenever doing so is not \u201cimpracticable and anomalous.\u201d See, e.g.<\/em>, Brief for American Civil Liberties Union as Amicus Curiae Supporting Petition for Certiorari, Kiyemba v. Obama, 130 S. Ct. 1235 (2010) (No. 08-1234); Implications of the Supreme Court\u2019s Boumediene Decision for Detainees at Guantanamo Bay, Cuba: Hearing Before the H. Comm. on Armed Services<\/em>, 110th Cong. (2008) (Statement of Neal Katyal, Prof. of Law, Geo. U. L. Center) <\/em>(\u201cBoumediene<\/em>\u2019s right to habeas corpus would be meaningless if there were no substantive rights to defend.\u201d); Geltzer, supra <\/em>note 34, at *58\u201364. If the D.C. Circuit or Supreme Court were to overrule this aspect of Kiyemba<\/em> and find that the detainees have due process rights, it could change the ultimate conclusion about whether the Uighurs must be released into the United States. See<\/em> Zadvydas v. Davis, 533 U.S. 678 (2001) (prohibiting the indefinite detention of unremovable admitted aliens on Fifth Amendment grounds). Nevertheless, the issue is settled for the time being and is beyond this article\u2019s scope.<\/p>\n<\/div>\n

\n

[74]<\/a> Boumediene<\/em>, 553 U.S. at 779.<\/p>\n<\/div>\n

\n

[75]<\/a> Id<\/em>.<\/p>\n<\/div>\n

\n

[76]<\/a> Id.<\/em> (emphasis added).<\/p>\n<\/div>\n

\n

[77]<\/a> See supra<\/em> note 8 and accompanying text.<\/p>\n<\/div>\n

\n

[78]<\/a> Boumediene<\/em>, 553 U.S. <\/em>at 745.<\/p>\n<\/div>\n

\n

[79]<\/a> Adrian Vermeule, States of Detention<\/em>, TNR.com (Mar. 1, 2010, 12:00 AM), http:\/\/www.tnr.com\/book\/review\/states-detention<\/a> (reviewing Halliday, supra<\/em> note 7).<\/p>\n<\/div>\n

\n

[80]<\/a> Boumediene<\/em>, 553 U.<\/em>S. <\/em>at 765 (rejecting the government\u2019s position on the grounds that it \u201cwould permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say \u2018what the law is\u2019\u201d) (internal quotation marks omitted). Scholars and politicians can debate whether Boumediene<\/em> got the balance correct and even whether the Court\u2019s defensive posture was disingenuous. But, it bears emphasizing that it is preposterous to read Boumediene<\/em> precedentially as standing for a greater claim of judicial power than the Constitution allows.<\/p>\n<\/div>\n

\n

[81]<\/a> See Ex Parte <\/em>Bollman, 8 U.S. (4 Cranch) 75 (1807).<\/p>\n<\/div>\n

\n

[82]<\/a> See<\/em> Vladeck, supra<\/em> note 7, at 967.<\/p>\n<\/div>\n

\n

[83]<\/a> Cf. Boumediene<\/em>, 553 U.S. at 833\u201334 (Scalia, J., dissenting) (\u201c[I]f the understood scope of the writ of habeas corpus was \u2018designed to restrain\u2019 (as the Court says) the actions of the Executive, the understood limits upon that scope were (as the Court seems not to grasp) just as much “designed to restrain” the incursions of the Third Branch.\u201d).<\/p>\n<\/div>\n

\n

[84]<\/a> See<\/em> Vladeck, supra<\/em> note 3, at 972; see also<\/em> Stanton, supra <\/em>note 23, at 898 (arguing that the equitable nature of habeas corpus \u201cpermit[s] flexible avenues of relief\u201d).<\/p>\n<\/div>\n

\n

[85]<\/a> Kiyemba I<\/em>, 555 F.3d 1022, 1029 (D.C. Cir. 2009). The debate over whether the D.C. Circuit properly interpreted plenary power doctrine precedents is beyond the scope of this article, but for discussion of that topic, see, for example, id<\/em>. at 1035\u201358 (Rogers, J., concurring); Brief for Law Professors as Amici Curiae Supporting Petition for Certiorari, Kiyemba v. Obama, 130 S. Ct. 1235 (2010) (No. 08-1234).<\/p>\n<\/div>\n

\n

[86]<\/a> 553 U.S. 674 (2008).<\/p>\n<\/div>\n

\n

[87]<\/a> Id.<\/em> at 679.<\/p>\n<\/div>\n

\n

[88]<\/a> Id.<\/em> at 700\u201301.<\/p>\n<\/div>\n

\n

[89]<\/a> Cf. <\/em>W. Va. Univ. Hosps. v. Casey, 499, U.S. 83, 101 (1991) (defining the Court\u2019s role as \u201cmak[ing] sense rather than nonsense out of the corpus juris<\/em>\u201d).<\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

As three Uighurs remain in Guantanamo, Daniel J. Feith finds that the D.C. Circuit ruling that kept them there is surprisingly consistent with Boumediene. <\/p>\n","protected":false},"author":1,"featured_media":3101,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[4,24],"tags":[],"class_list":["post-3100","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-features","category-online"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/journals.law.harvard.edu\/nsj\/wp-content\/uploads\/sites\/82\/2012\/07\/Uighurs.jpg?fit=496%2C372&ssl=1","jetpack_shortlink":"https:\/\/wp.me\/peZtUX-O0","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/3100","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/comments?post=3100"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/3100\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/media\/3101"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/media?parent=3100"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/categories?post=3100"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/tags?post=3100"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}