Kiyemba v. Obama

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 22, 2010 Decided May 28, 2010

No. 08-5424

JAMAL KIYEMBA, NEXT FRIEND, ET AL.,
APPELLEES

v.

BARACK OBAMA, PRESIDENT OF THE UNITED STATES, ET AL.,
APPELLANTS

Consolidated with 08-5425, 08-5426, 08-5427, 08-5428,
08-5429

On Remand from the U.S. Supreme Court

Sharon Swingle, Attorney, U.S. Department of Justice,
argued the cause for appellants. With her on the motion for
reinstatement and the opposition to appellees’ motion to govern
and for remand were Thomas M. Bondy and Robert M. Loeb,
Attorneys.

Sabin Willett argued the cause for appellees. With him on
the motion to govern and for remand and the opposition to the
motion for reinstatement were Rheba Rutkowski, Neil
McGaraghan, Jason S. Pinney, Susan Baker Manning, George
 2

Clarke, J. Wells Dixon, Eric A. Tirschwell, Michael J. Sternhell,
Darren LaVerne, Seema Saifee, Elizabeth P. Gilson, Angela C.
Vigil and Cori Crider.

Before: HENDERSON and ROGERS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

Opinion concurring in the judgment filed by Circuit Judge
ROGERS.

PER CURIAM: On March 1, 2010, the Supreme Court
vacated our judgment in Kiyemba v. Obama, 555 F.3d 1022
(D.C. Cir. 2009) (Kiyemba I), and remanded the case to us to
“determine . . . what further proceedings” in our court or in the
district court “are necessary and appropriate for the full and
prompt disposition of the case in light of the new
developments,” Kiyemba v. Obama, 130 S. Ct. 1235, 1235
(2010) (per curiam). We assume familiarity with our Kiyemba
I opinion. The “new developments” the Court identified were
as follows. All seventeen petitioners “received at least one offer
of resettlement in another country,” and twelve accepted an
offer. Id. The remaining five “rejected two such offers and are
still being held at Guantanamo Bay.” Id.

In compliance with the Supreme Court’s mandate we held
further proceedings, considered the parties’ motions and heard
oral argument. We now grant the government’s motion to
reinstate the judgment and we reinstate our original opinion, as
modified here to take account of new developments.

The posture of the case now is not materially different than
it was when the case was first before us. On February 19, 2010,
the government informed the Supreme Court that one of the
 3

original petitioners “had not previously received an offer of
resettlement from any country” before he and his brother
received offers from Switzerland in 2010. Letter from Elena
Kagan, Solicitor General, to William K. Suter, Clerk of the
Court, at 1 (Feb. 19, 2010). The government also told the Court
that the five Uighurs who remain at Guantanamo Bay had
received a total of two offers – one from Palau in September
2009, which they rejected, and then another from an unnamed
country, which they also rejected. See id. at 2; Brief for
Respondents at 10, Kiyemba v. Obama, 130 S. Ct. 1235 (2010)
(No. 08-1234). As the government admitted at oral argument,
this information – on which the Court apparently relied in its per
curiam opinion – was not completely accurate. In fact, shortly
before we issued our opinion in February 2009, the government
filed material under seal stating that each of the seventeen
petitioners had recently received a resettlement offer from a
foreign country. The five petitioners who remain in this case
have thus received and rejected three offers, rather than two.
Our original decision was made in the light of resettlement
offers to all petitioners, which is why we were confident that the
government was “continuing diplomatic attempts to find an
appropriate country willing to admit petitioners.” Kiyemba I,
555 F.3d at 1029.

We agree with the government that no legally relevant facts
are now in dispute. None of petitioners’ arguments turn on
particular factual considerations. Petitioners want us to remand
the case to the district court for an evidentiary hearing on
whether any of the resettlement offers were “appropriate.” But
as our original opinion indicated, even if petitioners had good
reason to reject the offers they would have no right to be
released into the United States. In addition, an intervening
opinion of this court precludes the sort of judicial inquiry
petitioners seek; it is for the political branches, not the courts, to
determine whether a foreign country is appropriate for
 4

resettlement. Kiyemba v. Obama, 561 F.3d 509, 514-16 (D.C.
Cir. 2009) (Kiyemba II) (discussing Munaf v. Geren, 128 S. Ct.
2207, 2225-26 (2008)); see also id. at 516-17 (Kavanaugh, J.,
concurring).

Our original opinion in 2009 held that it was 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.” Kiyemba I, 555 F.3d at 1025. At the time of our
decision we had heard only from the Executive Branch. Since
then, the Legislative Branch has spoken. 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. See Supplemental
Appropriations Act, 2009, Pub. L. No. 111-32, § 14103, 123
Stat. 1859, 1920; Continuing Appropriations Resolution, 2010,
Pub. L. No. 111-68, Div. B., § 115, 123 Stat. 2023, 2046;
Department of Homeland Security Appropriations Act, 2010,
Pub. L. No. 111-83, § 552, 123 Stat. 2142, 2177-78; National
Defense Authorization Act for Fiscal Year 2010, Pub. L. No.
111-84, § 1041, 123 Stat. 2190, 2454-55; Department of the
Interior, Environment, and Related Agencies Appropriations
Act, 2010, Pub. L. No. 111-88, Div. A, § 428, 123 Stat. 2904,
2962; Consolidated Appropriations Act, 2010, Pub. L. No. 111-
117, § 532, 123 Stat. 3034, 3156; Department of Defense
Appropriations Act, 2010, Pub. L. No. 111-118, § 9011, 123
Stat. 3409, 3466-67. Petitioners say these statutes, which clearly
apply to them, violate the Suspension Clause of the Constitution.
U.S. CONST. art. I, § 9, cl. 2. But the statutes suspend nothing:
petitioners never had a constitutional right to be brought to this
country and released. Petitioners also argue that the new
statutes are unlawful bills of attainder. The statutory
restrictions, which apply to all Guantanamo detainees, are not
legislative punishments; they deprive petitioners of no right they
 5

already possessed. See Nixon v. Adm’r of Gen. Servs., 433 U.S.
425, 475, 481 (1977).

We therefore reinstate the judgment and reinstate our
opinion, as modified here to take into account these new
developments.

So Ordered.
 ROGERS, Circuit Judge, concurring in the judgment: As this
case returns to the court on remand from the Supreme Court,
petitioners’ original habeas claim has been overtaken by events,
and it is no longer necessary to opine as broadly as the majority
does by reinstating its opinion of February 18, 2009. That
opinion was overbroad to begin with, as pointed out in my
separate concurrence, which must, as a result, also be reinstated,
acknowledging certain new developments. See Kiyemba v.
Obama, 555 F.3d 1022, 1032–39 (D.C. Cir. 2009) (Rogers, J.,
concurring in the judgment) (“Kiyemba I”).

These five Uighur petitioners sought certiorari review of
this court’s reversal of the district court’s grant of the writs of
habeas corpus on the ground that their “Executive detention is
indefinite and without authorization in law, and release into the
continental United States is the only possible effective remedy.”
Kiyemba v. Obama, 130 S. Ct. 1235, 1235 (2010) (quoting
petition for certiorari) (emphasis added). The district court had
granted the writs and ordered release into this country under
these circumstances, when indefinite detention at Guantanamo
was the only alternative. In re Guantanamo Bay Litig., 581 F.
Supp. 2d. 33, 42–43 (D.D.C. 2008). Since our decision in
February 2009 reversing the district court, the United States has
identified several countries willing to receive petitioners for
resettlement.1 One offer of resettlement was made shortly
before our February 18, 2009 decision, although the United
States “had not made and did not make an independent
determination that [the country] was otherwise appropriate for
resettlement.” Tr. Apr. 22, 2010 at 6 (lines 17–19). After our

1
Twelve of the original seventeen Uighur petitioners have
accepted resettlement offers: four in Bermuda, six in Palau, and two
in Switzerland. See Respondents’ Opposition to Petitioners’ Motion
to Govern and for Remand and Cross-Motion for Reinstatement of
Judgment (“Respts’ Opposition”) at 2–3; Respondents’ Letter of Mar.
24, 2010 to Mark J. Langer, Clerk of the Court, at 2.
 2

decision, however, the United States determined that two other
countries represent “appropriate” places for petitioners’
resettlement, including Palau where six other Uighur petitioners
have since been resettled.2 Tr. Apr. 22, 2010 at 6 (lines 24–25)
– 7 (line 1); see Respts’ Opposition at 10. Those countries
conditioned resettlement on petitioners’ “willingness to go
there.” Tr. Apr. 22, 2010 at 7 (lines 3–4).

Petitioners have rejected the offers of resettlement in
countries the United States has independently determined are
“appropriate” for their resettlement. See Respts’ Opposition at
10. Oral argument on April 22, 2010 confirmed, however, as is
implied in petitioners’ post-remand filings in this court, that
petitioners do not claim they feared torture or other oppression
or harm, including return to China, were they to have accepted
resettlement in either of the countries determined “appropriate”
by the United States. See Tr. Apr. 22, 2010 at 18 (lines 14–17);
see also id. at 34 (lines 16–17) (counsel for respondents); id. at
35 (line 25) – 36 (line 1) (same). Moreover, petitioners
acknowledge the United States’ efforts to identify a country for
resettlement have been “strenuous” and “in good faith.”
Petitioners’ Reply on Motion to Govern and for Remand and
Opposition to Respondents’ Cross-Motion for Reinstatement of
Judgment (“Petrs’ Reply”) at 10.

2
The United States’ determination that a country is
“appropriate” for resettlement addresses at least whether there is a
possibility that petitioners would “face harm in any proposed country
of resettlement.” Respondents’ Reply in Support of Cross-Motion for
Reinstatement of Judgment (“Respts’ Reply”) at 5. This includes
assurance that they would not be returned to China and would be
resettled in countries deemed to be “safe.” Id.; Tr. Apr. 22, 2010 at 33
(line 9). As a matter of policy, the United States will obtain
petitioners’ consent prior to resettlement. See id. at 34 (lines 1–2).
 3

In Boumediene v. Bush, 553 U.S. 723, 128 S. Ct. 2229,
2266 (2008), the Supreme Court held that “the habeas court
must have the power to order the conditional release of an
individual unlawfully detained — though release need not be the
exclusive remedy and is not the appropriate one in every case in
which the writ is granted.” Notably, the Court observed that
“common-law habeas corpus was, above all, an adaptable
remedy,” and that “when the judicial power to issue habeas
corpus properly is invoked the judicial officer must have
adequate authority to make a determination in light of the
relevant law and facts and to formulate and issue appropriate
orders for relief, including, if necessary, an order directing the
prisoner’s release.” Id. at 2267, 2271. On the same day, in
Munaf v. Geren, 553 U.S. 674, 128 S. Ct. 2207, 2213 (2008), the
Court emphasized the distinction between the habeas court’s
power to issue the writ and order release and its judgment
whether to do so “[u]nder [the] circumstances.” See also id. at
2221 (quoting Ex parte Watkins, 3 Pet. 193, 201 (1830)
(Marshall, C.J.)). So understood, the United States’ position —
that the writ of habeas corpus is effective, even without the
habeas court issuing the requested “extraordinary judicial order”
releasing petitioners into the continental United States while
awaiting resettlement, because the seventeen original petitioners
have either been transferred from Guantanamo to another
country or been offered “appropriate” resettlement elsewhere,
Respts’ Opposition at 17; see Tr. Apr. 22, 2010 at 32 (lines
20–21) — has force, at least for now.

In view of the adaptability of the habeas writ, petitioners’
claim of constitutional entitlement to release in the continental
United States pending resettlement abroad, see, e.g., Petrs’ Reply
at 14, cannot presently succeed. Pretermitting the question of
whether a habeas court ordering petitioners’ release from the
courthouse could overcome statutory barriers, see infra note 6;
cf. Clark v. Martinez, 543 U.S. 371, 386 & n.8 (2005); id. at
 4

387–88 (O’Connor, J., concurring), the relief petitioners seek —
release from indefinite and unlawful Executive detention at
Guantanamo, see Kiyemba, 130 S. Ct. at 1235 — is theirs upon
consent. Petitioners have received offers of resettlement abroad
in countries determined by the United States to be “appropriate”
for their resettlement. As a result, petitioners hold the keys to
their release from Guantanamo: All they must do is register their
consent. See Tr. Apr. 22, 2010 at 7 (lines 8–9). 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
United States has acknowledged it will not deem a country
“appropriate” for resettlement if petitioners would be subject to
torture, see id. at 2, 5; see also Kiyemba I, 555 F.3d at 1033 n.3
(Rogers, J., concurring in the judgment) (citing the United
Nations Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, to which the United
States is a signatory). Petitioners neither allege nor proffer
evidence of this or other harm as would occasion the need for a
remand3 so the habeas court could devise a meaningful additional

3
Petitioners’ request for a remand to the district court focused
predominantly on the fact that all of “the facts surrounding purported
offers of resettlement abroad” developed after the petition for
certiorari was filed are not a part of the record, other than through
letters submitted to the Supreme Court by counsel. Motion to Govern
and for Remand (“Petrs’ Motion”) at 2, 3. Of the matters petitioners
identify, none affect their entitlement claim: Petitioners do not deny
that they received two offers of resettlement in countries the United
States determined “appropriate,” and they do not challenge that
determination in any way relevant to their claim of entitlement to
release into the continental United States pending resettlement.
During oral argument their counsel spoke instead of the desire for
citizenship, ownership of property, cultural affinity, and employment,
Tr. Apr. 22, 2010 at 20 (lines 24–25) – 22 (line 4), while
acknowledging petitioners’ “biggest issue is, are you going to be
 5

remedy.4 The United States has advised that, were petitioners to
express an interest, it is prepared to pursue resettlement in Palau,
an “appropriate” country that remains receptive to their
consensual resettlement. See Respts’ Opposition at 10, 24; Tr.
Apr. 22, 2010 at 32 (lines 23–25).

Petitioners had not argued prior to this remand that they
were entitled to release in the continental United States even if
they had offers of resettlement elsewhere, only that they were
entitled to be brought and released here because they had
nowhere else to go. See Brief for Petitioners at 35–36, Kiyemba

kicked back to China. That’s the big risk,” id. at 25 (lines 20–21).
4
The majority overreads both Munaf, 128 S. Ct. at 2213, and
this court’s most recent opinion in Kiyemba v. Obama, 561 F.3d 509
(D.C. Cir. 2009) (“Kiyemba II”). See Maj. Op. at 3–4. In Munaf the
Supreme Court limited its holding, stating that “[u]nder circumstances
such as those presented here,” habeas corpus provided no relief. 128
S. Ct. at 2213. The Court did state, in discussing the State
Department’s evaluation of the risk of torture and prisoner
mistreatment in a foreign country’s legal system, that “[t]he Judiciary
is not suited to second-guess such determinations,” id. at 2226
(emphasis added), but went no further. Noting that the petitioners
there “allege only the possibility of mistreatment in a prison facility,”
the Court left open the question whether, in “a more extreme case in
which the Executive has determined that a detainee is likely to be
tortured but decides to transfer him anyway,” the writ would provide
relief. Id. So too in Kiyemba II, this court declined to consider the
likelihood of torture and prosecutions under the foreign legal system
on grounds of comity and separation of powers, 561 F.3d at 514–16
(citing Munaf, 128 S. Ct. at 2225–26). Neither case stands for the
broader proposition that the habeas court has no role to play whenever
a petitioner challenges an Executive Branch determination. See
Zadvydas v. Davis, 533 U.S. 678, 696 (2001).
 6

v. Obama, 130 S. Ct. 1235 (2010) (No. 08-1234).5 The fact that
an offer of resettlement in an “appropriate” country remains
available, however, means petitioners’ release from Guantanamo
is available without the need for further action by the habeas
court. That a habeas court may have the authority to order
release is a separate question from whether that court is obligated
to order release, cf. Munaf, 128 S. Ct. at 2220–21, much less
release into the continental United States. Sustaining petitioners’
objection to “exile” to “a distant island” (Palau), Petrs’ Reply at
13–14, would imply that their claim of constitutional entitlement
under the Suspension Clause to release in the continental United
States applies no matter where “appropriate” resettlement is
offered, until they give their consent to be resettled abroad.
During oral argument petitioners disclaimed such a broad
contention, see Tr. Apr. 22, 2010 at 24 (line 23) – 25 (line 4); id.
at 25 (lines 20–21), presumably because Boumediene and Munaf
reaffirmed that circumstances influence the nature of the
meaningful remedy a habeas court should provide. See
Boumediene, 128 S. Ct. at 2266–67; Munaf, 128 S. Ct. at 2213,
2220–21.

Petitioners’ reliance on Fifth Amendment due process and
the Geneva Conventions in support of their claim of entitlement

5
In their merits brief to the Supreme Court, petitioners stated:

Petitioners did not seek admission [under the immigration
laws]. They asked only for release from a prison to which
they were brought in chains. If U.S. release is the only way
to achieve that release, Petitioners are not responsible for the
dilemma. Transfer to a safe haven abroad would have been
welcome, and still would be welcome if initiated from the
continental United States. Petitioners prefer U.S. release only
to U.S. prison.

Id. (emphasis added).
 7

to release in the continental United States pending resettlement
fails for similar reasons. Petitioners seek writs of habeas corpus
grounded in their claims of unlawful Executive detention at the
Guantanamo Bay Naval Station. See Amended Petition for Writs
of Habeas Corpus, filed Oct. 21, 2005, at 10, 31. Whatever role
due process and the Geneva Conventions might play with regard
to granting the writ, petitioners cite no authority that due process
or the Geneva Conventions confer a right of release in the
continental United States when an offer of resettlement abroad
in an “appropriate” country is made in good faith and remains
available. In Boumediene, 128 S. Ct. at 2266–67, the Supreme
Court reaffirmed the adaptability of the habeas remedy,
regardless of the reason the underlying detention is unlawful.
The adaptable nature of the habeas remedy is intrinsic to the writ
itself, and petitioners’ current circumstances undermine their
claim that the habeas remedy, even accounting for the Fifth
Amendment Due Process Clause and the Geneva Conventions,
requires their release into the continental United States pending
resettlement abroad.

Contrary to petitioners’ suggestion, the United States has not
argued that their rejection of resettlement offers means they have
permanently waived their right to seek habeas relief. See Petrs’
Reply at 13, 14; Tr. Apr. 22, 2010 at 19 (lines 10–12), 25 (lines
13–16), 26 (lines 5–6). That a habeas court declines to provide
a preferred remedy does not render a meaningful remedy forever
unavailable, for circumstances can change, see Boumediene, 128
S. Ct. at 2267. But petitioners’ circumstances differ from those
of Guantanamo detainees who were designated enemy
combatants, are now held at Guantanamo as enemies under the
laws of war, and are seeking release by writ of habeas corpus.
See Tr. Apr. 22, 2010 at 32 (lines 12–13); see also Brief for
Respondents in Opposition to the Grant of Certiorari at 5,
Kiyemba v. Obama, 130 S. Ct. 1235 (2010) (No. 08-1234).
Petitioners face no opposition by the United States to their
 8

release from Guantanamo for resettlement in countries abroad.
Indeed, the United States has taken the position that
“[p]etitioners are indisputably entitled to release from military
detention under the Authorization for Use of Military Force,” 50
U.S.C. § 1541 note. Respts’ Opposition at 17. Further, the
United States has identified “appropriate” countries for
petitioners’ resettlement and resettlement in one such country
remains available. Petitioners’ claim of constitutional
entitlement to release in the continental United States pending
resettlement abroad has thus been overtaken by events:
Petitioners hold the keys to their release from Guantanamo for
resettlement in an “appropriate” country.6

6
It is unnecessary, therefore, to decide whether Congress
unconstitutionally suspended the writ or enacted a bill of attainder
when it barred the use of appropriated funds to release or transfer
detainees at Guantanamo into the continental United States for
purposes other than trial and attendant detention. See, e.g.,
Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, § 532,
123 Stat. 3034, 3156 (2009) (providing that, except for prosecution
and detention during legal proceedings, “[n]one of the funds made
available in this or any other Act may be used to [transfer or] release
an individual who is detained, as of June 24, 2009, at Naval Station,
Guantanamo Bay, Cuba, into the continental United States, Alaska,
Hawaii, or the District of Columbia . . . .”).