A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit today rejected another attempt by five Chinese Muslim detainees at Guantanamo Bay to be released into the United States. In Kiyemba v. Obama, the panel, in a per curiam opinion, reinstated a 2009 circuit court decision which held that it is within “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.”
The U.S. Supreme Court in March had vacated that 2009 decision and ordered the circuit court to take another look at the case in light of new developments surrounding the government’s efforts to relocate the five men, members of an ethnic minority known as Uighurs.
Of the 17 Uighurs originally seeking release, 12 have accepted resettlement offers: four in Bermuda, six in Palau, and two in Switzerland. The five remaining detainees have received and rejected three offers.
The three-judge panel declined to remand the case to the district court for an evidentiary hearing on whether any of the resettlement offers was “appropriate.” The panel noted that in 2009, only the executive branch had opposed the prisoners’ release into the United States.
“Since then, the Legislative Branch has spoken,” the panel wrote. “In seven separate enactments – five of which remain in force today – Congress has prohibited the expenditure of any funds to bring any Guantanamo detainee to the United States.”
Two of the panel members—Judges Karen LeCraft Henderson and A. Raymond Randolph--- rejected the Uighurs’ arguments that those statutes violate the Suspension Clause and are illegal bills of attainders. “But the statutes suspend nothing: petitioners never had a constitutional right to be brought to this country and released,” wrote the two judges. “The statutory restrictions, which apply to all Guantanamo detainees, are not legislative punishments; they deprive petitioners of no right they already possessed.”
Judge Judith Rogers, concurring in the judgment, said the 2009 opinion was “overbroad” and its reinstatement was unnecessary to decide this case on remand from the Supreme Court. It also was unnecessary, she said, to decide the Suspension Clause and bill of attainder issues. “Petitioners have received offers of resettlement abroad in countries determined by the United States to be `appropriate’ for their resettlement,” she wrote. “As a result, petitioners hold the keys to their release from Guantanamo: All they must do is register their consent. The habeas court thus is no longer confronted with the choice between either releasing petitioners into the continental United States or dooming them to indefinite detention at Guantanamo.”
The Uighurs’ counsel, Sabin Willett, partner in Boston’s Bingham McCutchen, was not immediately available for comment. It is not known yet whether the case will return to the Supreme Court.