The Supreme Court issued an order (pdf) Friday in Kiyemba v. Obama, asking both sides to address, in effect, whether the case involving Uighurs detained at Guantanamo Bay should be dismissed.
The case, which was set for argument March 23, is an important test of whether a federal judge can, as part of his habeas jurisdiction, order detainees brought into the United States for release, as Judge Ricardo Urbina did in 2008. The Obama administration, like the Bush administration before it, argued that only the political branches have the power to determine which aliens can be brought into the United States. The U.S. Court of Appeals for the D.C. Circuit agreed.
At the same time, the Obama administration sought,and has been successful, in finding new homes outside the United States for the seven Uighurs left at the base, who have been determined not to be enemy combatants. As New York Times columnist Linda Greenhouse wrote online Friday, the Court and the administration may be eager to avoid another detainee-related test of executive power.
In letters to the Court Feb. 3 and 5, the parties informed the Court that the Swiss government had agreed to accept two of the Uighurs. The other five have already been offered resettlement by Palau and elsewhere, though they have not yet accepted. Solicitor General Elena Kagan said these developments "eliminate the factual premise" of the Kiyemba case, namely that "petitioners have no possibility of leaving Guantanamo Bay except by being released in the United States." As a result, Kagan said, "the Court may wish to dismiss the writ of certiorari as improvidently granted."
Friday's order from the Court asks the parties to address, in eight-page letter briefs due Feb. 19, "what should be the effect, if any, of the developments discussed in the letters."
This article first appeared on The BLT: The Blog of Legal Times.