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DC Circuit

DC Cir: Guantanamo detainees can't be ordered to US by fedct

Wednesday, 18 February 2009 17:00 Chuck Roth DC Circuit

Kiyemba v. Bush (D.C.Cir. 2/18/09)

RANDOLPH Henderson (Rogers, concurring in judgment)

17 Uighurs - who have been determined not to be "enemy combatants" - filed a habeas petition seeking release from Guantanamo into the US. The Govt concedes that it can't remove them to China, because of the CAT treaty - and no other country will take them. So release can only mean release into the US. The DistCt ordered release into the US; the Govt appealed, and the DC Cir reversed.

1. Citing the plenary power doctrine, entry of aliens into US is solely within the control of the political branches - unless a statute says otherwise. Cites Mezei heavily.

2. Due Process doesn't apply to aliens outside the US with no ties to the US.

3. Petitioner argued ubi jus, ubi remedium - where there's a right, there's a remedy - but CtApp said, no. Political questions, sovereign immunity - it's just not true in the constitutional arena.

4. Clark and Zadvydas don't require a different conclusion.

5. Judge Rogers, who mostly dissents, thinks that it was premature to order release, that the DistCt should have heard the DHS arguments re immigration before acting. CtApp majority says there isn't any visa application or application for admission, so it doesn't make sense to consider immigration aspects.

[CR: I was one of the attorneys on an amicus for NIJC and AILA which pointed out that the DHS could parole the Uighurs into the US without violating the immigration laws, ergo the DistCt's order is not, per se, contrary to immigration law. Not that release is required by the immigration laws, but that release into the US wouldn't violate the law. (thanks to Kirkland & Ellis for authoring that brief).

[Query: in pre- and post-Mezei-era habeas cases, DistCts surely held hearings at which they ordered the Govt to bring aliens from Ellis Island or other POEs, to the courthouse. True, we have VTC technology, which may make it imprudent - but imagine that a DistCt judge (with uncontested habeas jurisdiction over a Guantanamo detainee) orders that individual brought to court. Does this decision mean the judge couldn't do so? Isn't that an odd holding? - CR]

Read decision here:

Briefs (courtesy of Center for Constitutional Rights):

DC cir on renunciation of citizenship; rejects APA args re nat'l security, absence of forms

Thursday, 08 May 2008 15:20 Chuck Roth DC Circuit

Kaufman v. Mukasey (D.C.Cir. 5/2/08)

ROGERS, Edwards, Randolph (partially dissenting)

The DC Cir addressed the attempts of a then-detained USC who wanted to renounce his citizenship after the US invaded Iraq. The DC Cir remanded to the District Court to determine whether the AG still has authority over renunciations; and commented in dicta on the Govt's attempts to avoid mandamus jurisdiction based on the fact that he didn't file an official form (when DOJ has exercised its discretion not to create a form), and on the argument from national security, casting aspersions on both arguments.

Read opinion here:

DC Cir finds Harbury suit vs CIA barred by political question doctrine, FTCA

Wednesday, 16 April 2008 12:30 Chuck Roth DC Circuit

Harbury v. Hayden (D.C. Cir. 4/15/08)

KAVANAUGH, Randolph, Williams (concurring in part)

Jennifer Harbury sued on behalf of herself and Efrain Bamaca, alleging individual liability on the part of CIA employees complicit in the torture and death of her husband. The DC found the suit barred by the Political Question Doctrine, as it would require the courts to assess whether the conduct should have occurred. Alternately, it found that the CIA officials were acting in the scope of their employment, so that the FTCA applied; and the FTCA bars suits re actions that occurred abroad (the Court said that her emotional distress was derivative of the actions abroad). Finally, in a footnote, the Court found that if her claim was a TVPA action, if would still be barred by the Political Question Doctrine.

Read decision here:

DC Cir stays removal of Guantanamo detainee to Algeria where fears torture

Saturday, 15 March 2008 13:48 Chuck Roth DC Circuit

Belbacha v. Bush (D.C. Cir. 3/14/08)

GINSBURG, Griffith, Randolph (dissenting)

In a Guantanamo case, the D.C. Cir stayed the removal of an individual from Guantanamo to Algeria, where he fears torture. The Court found a substantial possibility that the District Court maintained habeas jurisdiction, and found that the District Court's power under the All Writs Act to enter collateral orders to preserve its jurisdiction would suffice to grant it authority to stay removal to Algeria. Found that in light of gravity of harm feared (torture), Belbacha might be able to meet the standard, remanded to Dist Ct.