By Jonathan Abrams, NSJ Staff Editor –<\/p>\n
On March 23rd, the Supreme Court is scheduled to hear arguments concerning the power of a federal judge to compel the Executive to admit detainees into the United States.\u00a0 But a two sentence order issued by the Court on Friday signaled that new developments may result in the Court never reaching the merits.<\/p>\n
The case, Kieymba <\/em>v. Obama<\/em>, involves a group of Uighurs, Chinese Muslims who were captured by bounty hunters in the early days of the Afghanistan war.\u00a0 The Bush administration declared the group enemy combatants and they were sent to Guantanamo.\u00a0 Eventually, the administration determined they were harmless, but ran into problems trying to release them.\u00a0 President Bush did not want to let them into the United States, nor did he want to send them to China, where they had legitimate fears of torture.\u00a0 Other countries did not want to accept the Uighurs out of fears of angering the Chinese. Thus, they were kept in a legal limbo: found to be harmless but remaining detained.<\/p>\n The Uighurs filed writs of habeas corpus to which the Bush administration, after decisions in other cases, eventually dropped its opposition.\u00a0 The question became the remedy.\u00a0 Traditionally, the remedy for habeas corpus is release from confinement.\u00a0 But release to where?\u00a0 A D.C. Circuit District Court judge ruled that the Executive must release the Uighurs into the United States.\u00a0 The administration appealed and won in the Court of Appeals for the D.C. Circuit.\u00a0 That court held that the decision over whom to admit into this country is exclusively one for the political branches; the courts have no say in the matter.\u00a0 The Supreme Court accepted to hear the case in October.<\/p>\n Earlier this month, the Obama administration got a break: Switzerland agreed to accept the last two Uighurs.\u00a0 The Solicitor General wrote to the Court claiming that these developments \u201celiminate the factual premise\u201d of the case, namely that \u201cthe prisoners have no possibility of leaving Guantanamo Bay except by release into the United States,\u201d and therefore the case should be dismissed.<\/p>\n The Court has ordered<\/a> supplemental briefing on what effect these developments have.\u00a0 If the Court determines that it cannot hear the case, there are two routes it could take.\u00a0 First, it could decide to dismiss the case as improvidently granted (\u201cDIG\u201d in court parlance).\u00a0 This would leave the Court of Appeals decision intact, thus giving the Executive a powerful piece of precedent to use in future disputes.\u00a0 However, there is another avenue.\u00a0 The Court may reach the merits and decide that the case has become moot, which would have the effect of vacating all lower court decisions.\u00a0 Any future president wishing to argue for judicial deference on the issue of detainee release would have to start again from a blank slate.<\/p>\n The supplemental briefs are due this Friday, February 19th.<\/p>\n More information about the case can be found at SCOTUSblog<\/a> and Legal Times<\/a>.\u00a0 Linda Greenhouse, former Supreme Court correspondent for the New York Times<\/em>, offers her assessment here<\/a>.<\/p>\n UPDATE:<\/strong> On Monday, March 1st, the Supreme Court issued an unsigned order sending the case back to the D.C. circuit court to decide \u201cwhat further proceedings in that court or in the District Court are necessary and appropriate for the full and final disposition of the case in light of . . . new developments.”<\/p>\n Photo courtesy of the Associated Press, via the Huffington Post<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" By Jonathan Abrams, NSJ Staff Editor – On March 23rd, the Supreme Court is scheduled to hear arguments concerning the power of a federal judge to compel the Executive to admit detainees into the United States.\u00a0 But a two sentence order issued by the Court on Friday signaled that new developments may result in the Court never reaching the merits. The case, Kieymba v. Obama, involves a group of Uighurs, Chinese Muslims who were captured by bounty hunters in the early days of the Afghanistan war.\u00a0 The Bush administration declared the group enemy combatants and they were sent to Guantanamo.\u00a0 […]<\/p>\n","protected":false},"author":2,"featured_media":0,"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":[1],"tags":[],"class_list":["post-837","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/peZtUX-dv","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/837","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\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/comments?post=837"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/837\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/media?parent=837"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/categories?post=837"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/tags?post=837"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}