Kiyemba v. Obama

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 24, 2008 Decided February 18, 2009

No. 08-5424

JAMAL KIYEMBA, NEXT FRIEND, ET AL.,
APPELLEES

v.

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

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

Appeals from the United States District Court
for the District of Columbia
(No. 1:08-mc-00442)

Gregory G. Garre, Solicitor General, U.S. Department of
Justice, argued the cause for appellants. With him on the briefs
were Gregory G. Katsas, Assistant Attorney General, Jonathan
F. Cohn, Deputy Assistant Attorney General, and Robert E.
Kopp, Thomas M. Bondy, Anne Murphy, and Sharon Swingle,
Attorneys. Scott R. McIntosh, Attorney, entered an appearance.
 2

Sabin Willett argued the cause for appellees. With him on
the brief were Rheba Rutkowski, Neil McGaraghan, Jason S.
Pinney, Susan Baker Manning, George Clark, Eric A.
Tirschwell, Michael J. Sternhell, Darren LaVerne, Seema Saifee,
Elizabeth P. Gilson, J. Wells Dixon, and Angela C. Vigil.

Howard Schiffman was on the brief for amicus curiae
Uyghur American Association in support of appellees.

Lucas Guttentag and Theodore D. Frank were on the brief
of law professors as amici curiae, addressing Shaughnessy v.
United States ex rel. Mezei and Clark v. Martinez, and
supporting affirmance.

Alex Young K. Oh and Aziz Huq were on the brief for amici
curiae Brennan Center for Justice at NYU School of Law, et al.
in support of appellees.

David Overlock Stewart were on the brief for amici curiae
Legal and Historical Scholars in support of appellees.

Thomas A. Gottschalk was on the brief for amici curiae
National Immigration Justice Center, et al. in support of
appellees.

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

Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.

Opinion concurring in the judgment filed by Circuit Judge
ROGERS.
 3

RANDOLPH, Senior Circuit Judge: Seventeen Chinese
citizens currently held at Guantanamo Bay Naval Base, Cuba,
brought petitions for writs of habeas corpus. Each petitioner is
an ethnic Uighur, a Turkic Muslim minority whose members
reside in the Xinjiang province of far-west China. The question
is whether, as the district court ruled, petitioners are entitled to
an order requiring the government to bring them to the United
States and release them here.

Sometime before September 11, 2001, petitioners left China
and traveled to the Tora Bora mountains in Afghanistan, where
they settled in a camp with other Uighurs. Parhat v. Gates, 532
F.3d 834, 837 (D.C. Cir. 2008). Petitioners fled to Pakistan
when U.S. aerial strikes destroyed the Tora Bora camp. Id.
Eventually they were turned over to the U.S. military,
transferred to Guantanamo Bay and detained as “enemy
combatants.”1

Evidence produced at hearings before Combatant Status
Review Tribunals in Guantanamo indicated that at least some
petitioners intended to fight the Chinese government, and that
they had received firearms training at the camp for this purpose.
See Parhat, 532 F.3d at 838, 843. The Tribunals determined
that the petitioners could be detained as enemy combatants
because the camp was run by the Eastern Turkistan Islamic

1
An “enemy combatant” is “an individual who was part of or
supporting Taliban or al Qaida forces, or associated forces that are
engaged in hostilities against the United States or its coalition partners.
This includes any person who has committed a belligerent act or has
directly supported hostilities in aid of enemy armed forces.” Parhat,
532 F.3d at 838 (quoting Deputy Secretary, U.S. Dep’t of Defense,
Order Establishing Combatant Status Review Tribunal at 1 (July 7,
2004); Secretary, U.S. Navy, Implementation of Combatant Status
Review Tribunal Procedures at E-1 § B (July 29, 2004)).
 4

Movement, a Uighur independence group the military believes
to be associated with al Qaida or the Taliban, see id. at 844, and
which the State Department designated as a terrorist
organization three years after the petitioners’ capture, see 69
Fed. Reg. 23,555-01 (April 29, 2004).

In the Parhat case, the court ruled that the government had
not presented sufficient evidence that the Eastern Turkistan
Islamic Movement was associated with al Qaida or the Taliban,
or had engaged in hostilities against the United States or its
coalition partners. Parhat, 532 F.3d at 850. Parhat therefore
could not be held as an enemy combatant. The government saw
no material differences in its evidence against the other Uighurs,
and therefore decided that none of the petitioners should be
detained as enemy combatants.

Releasing petitioners to their country of origin poses a
problem. Petitioners fear that if they are returned to China they
will face arrest, torture or execution. United States policy is not
to transfer individuals to countries where they will be subject to
mistreatment. Petitioners have not sought to comply with the
immigration laws governing an alien’s entry into the United
States. Diplomatic efforts to locate an appropriate third country
in which to resettle them are continuing. In the meantime,
petitioners are held under the least restrictive conditions possible
in the Guantanamo military base.

As relief in their habeas cases, petitioners moved for an
order compelling their release into the United States. Although
the district court assumed that the government initially detained
petitioners in compliance with the law, In re Guantanamo Bay
Detainee Litig., No. 05-1509, Memorandum Opinion at 5
(D.D.C. Oct. 9, 2008) (“Mem. Op.”), the court thought the
government no longer had any legal authority to hold them, id.
at 9. As to the appropriate relief, the court acknowledged that
 5

historically the authority to admit aliens into this country rested
exclusively with the political branches. Id. at 11–12.
Nevertheless, the court held that the “exceptional”
circumstances of this case and the need to safeguard “an
individual’s liberty from unbridled executive fiat,” justified
granting petitioners’ motion.2 Id. at 12, 15.

Our analysis begins with several firmly established
propositions set forth in Saavedra Bruno v. Albright, 197 F.3d
1153, 1158 (D.C. Cir. 1999), from which we borrow. There is
first the ancient principle that a nation-state has the inherent
right to exclude or admit foreigners and to prescribe applicable
terms and conditions for their exclusion or admission.3 This
principle, dating from Roman times,4 received recognition
during the Constitutional Convention5 and has continued to be

2
The district court granted the motion on October 8, 2008,
and set a hearing date one week later to determine what conditions, if
any, it would impose on petitioners. In re Guantanamo Bay Detainee
Litig., 05-1509, Order at 2 (D.D.C. Oct. 8, 2008) (“Order”). The same
day, the government moved for, and this court granted, an emergency
stay of judgment. This court later granted a full stay of judgment
pending appeal and ordered expedited briefing of the government’s
appeal.
3
See, e.g., Ekiu v. United States, 142 U.S. 651, 659 (1892);
Harisiades v. Shaughnessy, 342 U.S. 580, 596 (1952) (Frankfurter, J.,
concurring); Clement Lincoln Bouvé, Exclusion and Expulsion of
Aliens 4 & n.3 (1912), and authorities there cited; II Emmerich de
Vattel, Le Droit Des Gens §§ 94, 100 (1758).
4
Edwin M. Borchard, The Diplomatic Protection of Citizens
Abroad 33, 44–48 (1915).
5
See 3 The Papers of James Madison 1277 (J.C.A. Stagg et
al. eds., 1996), in which Madison reports Gouverneur Morris’
observation during the debates that “every Society from a great nation
 6

an important postulate in the foreign relations of this country
and other members of the international community.6

For more than a century, the Supreme Court has recognized
the power to exclude aliens as “‘inherent in sovereignty,
necessary for maintaining normal international relations and
defending the country against foreign encroachments and
dangers – a power to be exercised exclusively by the political
branches of government’”7 and not “granted away or restrained
on behalf of any one.” The Chinese Exclusion Case, 130 U.S.
581, 609 (1889). Ever since the decision in the Chinese
Exclusion Case, the Court has, without exception, sustained the

down to a club ha[s] the right of declaring the conditions on which
new members should be admitted.” Article I, Section 9, Clause 1, of
the Constitution itself is an implicit recognition of Congress’ authority
to regulate immigration. In addition, Article III of the Jay Treaty of
1794, 8 Stat. 116, 117, provided that British and American subjects
could freely cross the Canadian border. See Karmuth v. United States,
279 U.S. 231, 235–36 (1929). As to the Colonial understanding of the
sovereign’s power to control the admission of aliens, see Thomas
Jefferson, Notes on the State of Virginia 83–85 (William Peden ed.
1955).
6
See Hines v. Davidowitz, 312 U.S. 52, 62–65 (1941);
Convention Between the United States of America and other American
Republics regarding the status of aliens art. I, 46 Stat. 2753 (1928);
Constitution of the Intergovernmental Committee for European
Migration pmbl., 6 United States Treaties and Other International
Agreements 603 (1953); III Green Haywood Hackworth, Digest of
International Law 725–29 (1942); Borchard, supra note 4, at 44–48;
William Edward Hall, International Law 211–12 (6th ed. 1909); IV
John Bassett Moore, A Digest of International Law 151–74 (1906).
7
Kleindienst v. Mandel, 408 U.S. 753, 765 (1972) (quoting
the Solicitor General’s brief); see Fiallo v. Bell, 430 U.S. 787, 792
(1977).
 7

exclusive power of the political branches to decide which aliens
may, and which aliens may not, enter the United States, and on
what terms. See, e.g., Ekiu, 142 U.S. at 659; Fong Yue Ting v.
United States, 149 U.S. 698, 713 (1893); Lem Moon Sing v.
United States, 158 U.S. 538, 543, 547 (1895); Wong Wing v.
United States, 163 U.S. 228, 237 (1896); Fok Yung Yo v. United
States, 185 U.S. 296, 302 (1902); Tiaco v. Forbes, 228 U.S. 549,
556–57 (1913); Hines, 312 U.S. at 62–64; United States ex rel.
Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950); Galvan v.
Press, 347 U.S. 522, 530 (1954); Graham v. Richardson, 403
U.S. 365, 377 (1971); Kleindienst, 408 U.S. at 765–66; Mathews
v. Diaz, 426 U.S. 67, 81 (1976); Fiallo, 430 U.S. at 792; Reno
v. Flores, 507 U.S. 292, 305–06 (1993); Demore v. Kim, 538
U.S. 510, 521–22 (2003).

With respect to the exclusive power of the political
branches in this area, there is, as the Supreme Court stated in
Galvan, “not merely ‘a page of history,’ . . . but a whole volume.
Policies pertaining to the entry of aliens and their right to remain
here are peculiarly concerned with the political conduct of
government.” 347 U.S. at 531 (quoting N.Y. Trust Co. v. Eisner,
256 U.S. 345, 349 (1921)). Justice Frankfurter summarized the
law as it continues to this day: “Ever since national States have
come into being, the right of the people to enjoy the hospitality
of a State of which they are not citizens has been a matter of
political determination by each State” – a matter “wholly outside
the concern and competence of the Judiciary.” Harisiades, 342
U.S. at 596 (concurring opinion).

As a result, it “is not within the province of any court,
unless expressly authorized by law, to review the determination
of the political branch of the Government to exclude a given
alien.” Knauff, 338 U.S. at 543. With respect to these seventeen
petitioners, the Executive Branch has determined not to allow
 8

them to enter the United States.8 The critical question is: what
law “expressly authorized” the district court to set aside the
decision of the Executive Branch and to order these aliens
brought to the United States and released in Washington, D.C.?

The district court cited no statute or treaty authorizing its
order, and we are aware of none. As to the Constitution, the
district court spoke only generally. The court said there were
“constitutional limits,” that there was some “constitutional
imperative,” that it needed to protect “the fundamental right of
liberty.” These statements suggest that the court may have had
the Fifth Amendment’s due process clause in mind. See Troxel
v. Granville, 530 U.S. 57, 65 (2000). But the due process clause
cannot support the court’s order of release. Decisions of the
Supreme Court and of this court – decisions the district court did
not acknowledge – hold that the due process clause does not
apply to aliens without property or presence in the sovereign
territory of the United States.9 See Zadvydas v. Davis, 533 U.S.
678, 693 (2001); United States v. Verdugo-Urquidez, 494 U.S.
259, 269, 274S75 (1990); Johnson v. Eisentrager, 339 U.S. 763,
783S84 (1950); Jifry v. FAA, 370 F.3d 1174, 1182 (D.C. Cir.
2004); 32 County Sovereignty Comm. v. Dep’t of State, 292 F.3d
797, 799 (D.C. Cir. 2002); Harbury v. Deutch, 233 F.3d 596,
603–04 (D.C. Cir. 2000), rev'd on other grounds sub nom.
Christopher v. Harbury, 536 U.S. 403 (2002); People's

8
We express no opinion on whether the Executive Branch
may ignore the immigration laws and release petitioners into the
United States without the consent of Congress.
9
The Guantanamo Naval Base is not part of the sovereign
territory of the United States. Congress so determined in the Detainee
Treatment Act of 2005 § 1005(g), 119 Stat. 2743. The Immigration
and Nationality Act, see 8 U.S.C. § 1101(a)(38), also does not treat
Guantanamo as part of the United States. See also Vermilya-Brown
Co. v. Connell, 335 U.S. 377, 380 (1948).
 9

Mojahedin Org. of Iran v. U.S. Dep't of State, 182 F.3d 17, 22
(D.C. Cir. 1999); Pauling v. McElroy, 278 F.2d 252, 254 n.3
(D.C. Cir. 1960) (per curiam). The district court, no less than a
panel of this court, must follow those decisions. See LaShawn
A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc).

The district court also sought to support its order by
invoking the idea embodied in the maxim ubi jus, ibi remedium
– where there is a right, there is a remedy. See Towns of
Concord, Norwood, & Wellesley, Mass. v. FERC, 955 F.2d 67,
73 (D.C. Cir. 1992).10 We do not believe the maxim reflects
federal statutory or constitutional law. See id. Not every
violation of a right yields a remedy, even when the right is
constitutional. See Wilkie v. Robbins, 127 S. Ct. 2588, 2597–98
(2007). Application of the doctrine of sovereign immunity to
defeat a remedy is one common example. See Alden v. Maine,
527 U.S. 706, 754 (1999). Another example, closer to this
case,11 is application of the political question doctrine. See
Webster v. Doe, 486 U.S. 592, 612–13 (1988) (Scalia, J.,
dissenting). More than that, the right–remedy dichotomy is not
so clear-cut. As Justice Holmes warned, “[s]uch words as
‘right’ are a constant solicitation to fallacy.” Jackman v.
Rosenbaum Co., 260 U.S. 22, 31 (1922). Ubi jus, ibi remedium
cannot tell us whether petitioners have a right to have a court
order their release into the United States. Whatever the force of
this maxim, it cannot overcome established law that an “alien

10
Some have argued that the maxim is part of the due process
guaranteed by the Constitution. See, e.g.,Tracy A. Thomas, Ubi Jus,
Ibi Remedium: The Fundamental Right to a Remedy Under Due
Process, 41 SAN DIEGO L. REV. 1633 (2004). If so, petitioners cannot
take advantage of it, for reasons we have already given.
11
“Questions, in their nature political, . . . can never be made
in this court.” Marbury v. Madison, 1 Cranch 137, 170 (1803).
 10

who seeks admission to this country may not do so under any
claim of right. Admission of aliens to the United States is a
privilege granted by the sovereign United States Government.
Such a privilege is granted to an alien only upon such terms as
the United States shall prescribe.” Knauff, 338 U.S. at 542.

Much of what we have just written served as the foundation
for the Supreme Court’s opinion in Shaughnessy v. United States
ex rel. Mezei, 345 U.S. 206 (1953), a case analogous to this one
in several ways. The government held an alien at the border
(Ellis Island, New York). He had been denied entry into the
United States under the immigration laws. But no other country
was willing to receive him. The Court ruled that the alien, who
petitioned for a writ of habeas corpus, had not been deprived of
any constitutional rights. Id. at 215. In so ruling the Court
necessarily rejected the proposition that because no other
country would take Mezei, the prospect of indefinite detention
entitled him to a court order requiring the Attorney General to
release him into the United States. As the Supreme Court saw
it, the Judiciary could not question the Attorney General’s
judgment. Id. at 212.

Neither Zadvydas, 533 U.S. 678, nor Clark v. Martinez, 543
U.S. 371 (2005), are to the contrary. Petitioners are incorrect in
viewing these cases as holding that the constitutional “liberty
interests of concededly illegal aliens trumps [sic] statutory
detention power pending exclusion once that detention becomes
indefinite.” Pet’rs’ Br. 29. Both cases rested on the Supreme
Court’s interpretation, not of the Constitution, but of a provision
in the immigration laws – a provision, the Court acknowledged,
Congress had the prerogative of altering.12 See Clark, 543 U.S.

12
It would therefore be wrong to assert that, by ordering aliens
paroled into the country in Zadvydas and Clark, the Court somehow
undermined the plenary authority of the political branches over the
 11

at 386. It is true that Zadvydas spoke of an alien’s due process
rights, but the Court was careful to restrict its statement to aliens
who had already entered the United States. 533 U.S. at 693. It
was on that ground that the Court distinguished Mezei. Id. The
distinction is one that “runs throughout immigration law.” Id.
The Court stated: “It is well established that certain
constitutional protections available to persons inside the United
States are unavailable to aliens outside of our geographic
borders.” Id. (citing Verdugo-Urquidez, 494 U.S. at 269;
Eisentrager, 339 U.S. at 784).

And so we ask again: what law authorized the district court
to order the government to bring petitioners to the United States
and release them here? It cannot be that because the court had
habeas jurisdiction, see Boumediene v. Bush, 128 S. Ct. 2229
(2008), it could fashion the sort of remedy petitioners desired.
The courts in Knauff and in Mezei also had habeas jurisdiction,
yet in both cases the Supreme Court held that the decision
whether to allow an alien to enter the country was for the
political departments, not the Judiciary. Petitioners and the
amici supporting them invoke the tradition of the Great Writ as
a protection of liberty. As part of that tradition, they say, a court
with habeas jurisdiction has always had the power to order the
prisoner’s release if he was being held unlawfully. But as in
Munaf v. Geren, 128 S. Ct. 2207, 2221 (2008), petitioners are
not seeking “simple release.” Far from it. They asked for, and
received, a court order compelling the Executive to release them
into the United States outside the framework of the immigration

entry and admission of aliens. The point is that Congress has set up
the framework under which aliens may enter the United States. The
Judiciary only possesses the power Congress gives it S to review
Executive action taken within that framework. Since petitioners have
not applied for admission, they are not entitled to invoke that judicial
power.
 12

laws. Whatever may be the content of common law habeas
corpus, we are certain that no habeas court since the time of
Edward I ever ordered such an extraordinary remedy.13

An undercurrent of petitioners’ arguments is that they
deserve to be released into this country after all they have
endured at hands of the United States. But such sentiments,
however high-minded, do not represent a legal basis for
upsetting settled law and overriding the prerogatives of the
political branches. We do not know whether all petitioners or
any of them would qualify for entry or admission under the
immigration laws.14 We do know that there is insufficient

13
Petitioners observe that “the Executive has cited no decision
in which a federal court has withheld a remedy from a civilian held in
a military prison indefinitely, and without charge, when that civilian
is within its jurisdiction and enjoys the constitutional privilege of
habeas corpus.” Pet’rs’ Br. 38. But petitioners seek an extraordinary
remedy. We therefore think it more significant that petitioners have
cited no case in which a federal court ordered the Executive to bring
an alien into the United States and to release him here, when the alien
was held outside our sovereign territory and had not even applied for
admission under the immigration laws.
14
The government asserts that petitioners would not qualify
for admission under the immigration laws. Gov’t Br. 27–29. They
would need visas, 8 U.S.C. § 1182(a)(7)(A), (B), which they do not
have, and a court could not order the Executive Branch to grant them
visas. Saavedra Bruno, 197 F.3d at 1160. The government also
suggests that petitioners are ineligible for another reason – even
though the United States was not their target, they allegedly engaged
in “terrorist activity” within the meaning of 8 U.S.C.
§ 1182(a)(3)(B)(i)(I), which would mandate their removal under 8
U.S.C. § 1225(c)(1). Petitioners object that the evidence is
insufficient to back up the government’s claim. See Pet’rs’ Br. 28.
The dispute cannot be resolved at this stage. Petitioners have not
applied for admission pursuant to the immigration laws; the
 13

evidence to classify them as enemy combatants – enemies, that
is, of the United States. But that hardly qualifies petitioners for
admission. Nor does their detention at Guantanamo for many
years entitle them to enter the United States. Whatever the
scope of habeas corpus, the writ has never been compensatory
in nature. See Heck v. Humphrey, 512 U.S. 477, 481 (1994);
Preiser v. Rodriguez, 411 U.S. 475, 493 (1973). The
government has represented that it is continuing diplomatic
attempts to find an appropriate country willing to admit
petitioners, and we have no reason to doubt that it is doing so.
Nor do we have the power to require anything more.

***

We have the following response to Judge Rogers’s separate
opinion.

1. Judge Rogers: “The power to grant the writ means
the power to order release.” Sep. Op. at 10.

No matter how often or in what form Judge Rogers repeats
this undisputed proposition – and repeat it she does – it will not
move us any closer to resolving this case. The question here is
not whether petitioners should be released, but where. That
question was not presented in Boumediene and the Court never
addressed it. As we wrote earlier, supra at 11–12, never in the
history of habeas corpus has any court thought it had the power
to order an alien held overseas brought into the sovereign
territory of a nation and released into the general population. As

immigration authorities therefore have made no formal determination
of their immigration status. See id. § 1225(a)(1). For the same reason,
petitioners are not entitled to parole under 8 U.S.C. § 1182(d)(5)(A),
a remedy that can be granted only to an applicant for admission and
only in the exclusive discretion of the Secretary of Homeland Security.
 14

we have also said, in the United States, who can come in and on
what terms is the exclusive province of the political branches.
In response, Judge Rogers has nothing to say.

2. Judge Rogers: “[T]he district court erred by ordering
release into the country without first ascertaining whether
the immigration laws provided a valid basis for detention as
the Executive alternatively suggested.” Sep. Op. at 4.

This statement, and others like it throughout the separate
opinion, is confused and confusing. First of all, the government
has never asserted, here or in the district court, that it is holding
petitioners pursuant to the immigration laws. None of the
petitioners has violated any of our immigration laws. How
could they? To presume otherwise – as Judge Rogers does
throughout her separate opinion, e.g., id. at 1, 4, 5, 6, 13 – is
strange enough.

Stranger still, Judge Rogers charges the district court with
acting “prematurely” in ordering petitioners’ release into the
United States. Sep. Op. at 1, 13. How so? As she sees it, the
district court should have first determined whether, under the
immigration laws, petitioners were eligible to enter the country
or were excludable. But no one – not the government, not
petitioners, not the amici – no one suggested that the court
should, or could, make any such determination.

What then is Judge Rogers talking about when she insists on
evaluating petitioners’ eligibility for admission under the
immigration laws? None of the petitioners has even applied for
admission. Perhaps she thinks a court should decide which, if
any, of the petitioners would have been admitted if they had
applied. But deciding that at this stage is impossible. A brief
survey of immigration law shows why.
 15

Eligibility turns in part on what status the alien is seeking.
The immigration laws presume that those applying for entry
seek permanent resident status. Such persons must first obtain
an immigrant visa from a consular officer. 8 U.S.C.
§ 1101(a)(16). But the consular officer can only act after a
petition is filed with the Secretary of Homeland Security,
showing the immigrant status for which the alien qualifies. Id.
§§ 1153(f), 1154. The consular officer then has the exclusive
authority to make the final decision about the issuance of any
such immigrant visa. Id. §§ 1104(a), 1201(a)(1)(A). That
decision is not judicially reviewable. Saavedra Bruno, 197 F.3d
at 1158.

Worldwide limits on immigration are set out in 8 U.S.C.
§ 1151. Additionally, there are limitations on the number of
visas that can be issued to immigrants from any one particular
country. Id. § 1152. Immigrants are divided into three
categories: family-sponsored immigrants, id. § 1153(a);
employment-based immigrants, id. § 1153(b); and diversity
immigrants, id. § 1153(c). For employment-based immigrants,
first preference is given to “priority workers,” which include
aliens with extraordinary ability in sciences, arts, education,
business, or athletics, id. § 1153(b)(1)(A); “outstanding
professors and researchers,” id. § 1153(b)(1)(B); and “certain
multinational executives and managers,” id. § 1153(b)(1)(C).
There are lower preference categories unnecessary to set forth.

Suppose the eligibility of any of the petitioners was
determined on the basis that they were seeking only temporary
admission. Here again, to be admitted as a nonimmigrant in
any of the categories set forth in the margin,15 the alien must

15
Some general classes of nonimmigrants are: career
diplomats, 8 U.S.C. § 1101(a)(15)(A); temporary visitors for business
or pleasure, id. § 1101(a)(15)(B); aliens in transit, id.
 16

apply for a visa. 8 U.S.C. § 1201(a)(1)(B). Different classes
have different requirements for what the alien must do to obtain
a visa, but all require that the alien submit some form.

Suppose the petitioners’ eligibility for admission turned on
whether they could be considered refugees or asylum seekers.
An alien seeking refugee or asylum status (refugees apply from
abroad; asylum applicants apply when already here) must
qualify as a “refugee” as defined in 8 U.S.C. § 1101(a)(42).
Whether they could be admitted under this heading depends on
numerical limitations established by the President, and on the
discretion of the Attorney General or the Secretary of Homeland
Security. To qualify as a refugee, an alien must (1) not be
firmly resettled in a foreign country, (2) be of “special
humanitarian concern” to the United States, and (3) be
admissible as an immigrant under the immigration laws. Id.
§ 1157(c)(1). Although the Attorney General and the Secretary
are given discretion to waive many of the grounds of
inadmissibility for a refugee applicant, the statute specifically
prohibits waiver of the “terrorist activity” ground. Id.
§ 1157(c)(3); see also supra at 12 n.14.

The parole remedy, 8 U.S.C. § 1182(d)(5)(A), not only is
granted in the exclusive discretion of the Secretary of Homeland
Security, but also is specifically limited to “any alien applying
for admission.” The section also provides that no alien who

§ 1101(a)(15)(C); ship or airplane crew members, id.
§ 1101(a)(15)(D); students, id. § 1101(a)(15)(F); temporary workers,
id. § 1101(a)(15)(H); aliens with extraordinary abilities, id.
§ 1101(a)(15)(O); entertainers and athletes, id. § 1101(a)(15)(P);
religious workers, id. § 1101(a)(15); and individuals coming to
provide information on a terrorist organization or for a criminal
investigation, id. § 1101(a)(15)(S).
 17

would more properly be considered a refugee should be paroled
unless the Secretary specifically determines that “compelling
reasons in the public interest” argue in favor of the parole
remedy.

There are many more complications, but the bottom line is
clear. Aliens are not eligible for admission into the United
States unless they have applied for admission. Numerical limits
may render them ineligible, as may many other considerations.
The Secretary has wide discretion with respect to several
categories of applicants and the decisions of consular officers on
visa applications are not subject to judicial review. And so we
find it impossible to understand what Judge Rogers is thinking
when she insists, for instance, that “the district court erred by
ordering release into the country without first ascertaining
whether the immigration laws provided a valid basis for
detention” of someone who (a) has never entered or attempted
to enter the country, and (b) has never applied for admission
under the immigration laws.

3. Judge Rogers: “[T]he majority has recast the
traditional inquiry of a habeas court from whether the
Executive has shown that the detention of the petitioners is
lawful to whether the petitioners can show that the habeas
court is ‘expressly authorized’ to order aliens brought into
the United States.” Sep. Op. at 9.

Judge Rogers fails to mention that the “expressly
authorized” quotation in our opinion is taken from a Supreme
Court opinion in a habeas case. We repeat with some additional
emphasis: it “is not within the province of any court, unless
expressly authorized by law, to review the determination of the
political branch of the Government to exclude a given alien.”
Knauff, 338 U.S. at 543. When Judge Rogers finally confronts
Knauff, how does she deal with the Supreme Court’s opinion?
 18

She calls it an “outlier,” as if her label could erase the case from
the United States Reports. We know and she knows that the
lower federal courts may not disregard a Supreme Court
precedent even if they think that later cases have weakened its
force. See Rodriguez de Quijas v. Shearson/Am. Express, Inc.,
490 U.S. 477, 484 (1989). With respect to Knauff, later cases
have reinforced, not lessened, its precedential value. See, e.g.,
Landon v. Plasencia, 459 U.S. 21, 32, 34 (1982); Mezei, 345
U.S. at 212.

4. Judge Rogers: “[T]he majority has mischaracterized
relevant precedent.” Sep. Op. at 11.

Judge Rogers is referring to our discussion of the Supreme
Court decisions in Clark and Zadvydas. We made two points
about the cases. The first was that both rested on statutory
provisions that are not involved here. Judge Rogers
acknowledges the correctness of our view. Our second point
was that as far as a court’s releasing an alien into the country
temporarily pursuant to statutory authority, there was a clear
distinction between aliens within the United States and those
“outside our geographic borders.” Zadvydas, 533 US. at 693.
How does Judge Rogers deal with this distinction? She claims
that Boumediene “rejected this territorial rationale as to
Guantanamo.” Sep. Op. at 11. But as the Court recognized, it
had never extended any constitutional rights to aliens detained
outside the United States; Boumediene therefore specifically
limited its holding to the Suspension Clause. 128 S. Ct. at 2262.

***

The judgment of the district court is reversed and the cases
are remanded for further proceedings consistent with this
opinion.
So Ordered.
 ROGERS, Circuit Judge, concurring in the judgment: In
Boumediene v. Bush, 128 S. Ct. 2229 (2008), the Supreme Court
held that detainees in the military prison at Guantanamo Bay
(“Guantanamo”) are “entitled to the privilege of habeas corpus
to challenge the legality of their detentions,” id. at 2262, and that
a “habeas court must have the power to order the conditional
release of an individual unlawfully detained,” id. at 2266.
Today the court nevertheless appears to conclude that a habeas
court lacks authority to order that a non-“enemy combatant”
alien be released into the country (as distinct from be admitted
under the immigration laws) when the Executive can point to no
legal justification for detention and to no foreseeable path of
release. I cannot join the court’s analysis because it is not
faithful to Boumediene and would compromise both the Great
Writ as a check on arbitrary detention and the balance of powers
over exclusion and admission and release of aliens into the
United States recognized by the Supreme Court to reside in the
Congress, the Executive, and the habeas court. Furthermore,
that conclusion is unnecessary because this court cannot yet
know if detention is justified here. Due to the posture of this
case, the district court has yet to hear from the Executive
regarding the immigration laws, which the Executive had
asserted may form an alternate basis for detention. The district
court thus erred in granting release prematurely, and I therefore
concur in the judgment.

I.

The Executive chose not to file returns to the petitions for
writs of habeas corpus for a majority of the petitioners. After
several hearings and briefing, the district court determined that
the Executive neither claimed petitioners were “enemy
combatants” or otherwise dangerous, nor charged them with a
crime, nor pointed to other statutory grounds for detention, nor
presented reliable evidence that they posed a threat to U.S.
interests. In re Guantanamo Bay Detainee Litig., Misc. No.
 2

08-442, Mem. Op. at 4, 12 (D.D.C. Oct. 9, 2008) (“2008 Mem.
Op.”). The Executive also did not deny it detained the
petitioners.1 The district court understood the Executive to
argue instead that it had extra-statutory “wind-up” authority to
repatriate petitioners2 and that the district court in any case

1
The majority opinion accepts the Executive's assertion on
brief that “petitioners are held under the least restrictive conditions
possible in the Guantanamo military base.” Maj. Op. at 4, 13;
Appellants’ Br. at 9. This means, according to the uncontested
allegations of petitioners, that they are still held in a high-security
prison with no contact with family, friends, or news from the outside
world, aside from sporadic visits from attorneys — during which
detainees are at least sometimes chained to the floor — and the Red
Cross. See Appellees’ Br. at 8-9.
2
The Executive argues this stems from the practice in past
wars to detain prisoners of war (“POWs”) beyond the end of a conflict
in order to arrange repatriation, as occurred, for example, with respect
to German POWs held within the continental United States during
World War II. The majority does not discuss this “wind up authority,”
so I note only that both the Geneva Conventions and U.S. Army policy
require repatriation of POWs “without delay.” The Geneva
Convention (III) Relative to the Treatment of Prisoners of War, Art.
118, ratified July 14, 1955, 6 U.S.T. 3316, T.I.A.S. No. 3364; DEPT.
OF THE ARMY, THE LAW OF LAND WARFARE, FIELD MANUAL 27-10 at
¶ 71(d) (1957) (instituting verbatim Geneva Convention III Art. 118).
In the first Gulf War, for example, all POWs – over 80,000 – were
repatriated or granted refugee status within Saudi Arabia within six
months of the cessation of hostilities. U.S. Dep't of Def., Final Report
to Congress: Conduct of the Persian Gulf War at *662, *671-72 (Apr.
1992), available at http://www.ndu.edu/library/epubs/cpgw.pdf. By
contrast, these seventeen petitioners, who have not been treated as
POWs, have been imprisoned at Guantanamo for over seven years,
and, as the district court determined, the Executive’s unsuccessful
efforts to locate a suitable country for release had been on-going for
more than five years and “[petitioners’] detention has become
 3

lacked the authority to order them released into the United
States. Id. at 4. Rejecting both of these rationales — the first
in view of the years in which the Executive had unsuccessfully
sought to find a country that would receive the petitioners
without risk of their being tortured,3 id. at 8-9, the second in
view of Boumediene and the need to afford an effective habeas
remedy, id. at 15-16 — the district court granted the petitions,
which sought release into the country. Ruling the Executive had
shown no lawful basis for what had become indefinite detention,
the district court concluded petitioners must be brought before
the court and released. Id. at 9, 17.

However, in the district court the Executive had also
pointed to a possible separate ground for detention that the
district court did not resolve — namely that petitioners were
excludable under the immigration statutes and could be detained
pending removal proceedings. Mot. Status Hr’g Tr. at 15, 44-45
(citing 8 U.S.C. § 1182(a)(3)(B) (aliens engaging in terrorist
activities inadmissible)), 52-53, 57-58 (discussing 8 U.S.C. §

effectively indefinite.” 2008 Mem. Op. at 8-9.
3
The majority understates the extent to which there is no
other viable country to which these petitioners can go. Maj. Op. at 4.
It is not only petitioners who fear they would be tortured if returned
to their homeland of China; former Navy Secretary Gordon England
and former Secretary of State Colin Powell confirmed as much, and
the Executive has never disputed that proposition, even in this
litigation. And, while the majority states it is the “policy” of the
United States not to render people into countries in which they will be
subject to torture or other mistreatment, id., that is also the legal
obligation of the United States as a signatory to the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, signed Apr. 18, 1988, S. Treaty Doc. No.
100-20, 1465 U.N.T.S. 85. Nothing in the Executive’s filings under
seal on January 16 and 28, 2009 has changed the situation.
 4

1182) (Oct. 7, 2008) (“Oct. 2008 Mot. Hr’g”). The Executive
had also sought a stay so it could evaluate petitioners’ status
under the immigration laws and present the views of the
Department of Homeland Security,4 id. at 44-45. The district
court declined to stay the proceedings, noting that petitioners
had already been imprisoned for seven years and delay had been
“the name of the game” in the Executive’s litigation strategy.
Id. at 47, 59. Instead the district court ordered the petitioners
immediately released into the United States,5 with a hearing to
follow a week later at which time the position of Homeland
Security could be presented, id. at 59-60. At that time, the
district court intended to consider conditions for petitioners’
continued release, id. The district court also purported to
restrain the Executive from taking petitioners into custody
pursuant to the immigration statutes during the week prior to the
hearing, id. at 48, 60.

In so proceeding, the district court erred by ordering release
into the country without first ascertaining whether the
immigration laws provided a valid basis for detention as the
Executive alternatively suggested. See Boumediene, 128 S. Ct.

4
See Homeland Security Act of 2002, Pub. L. No. 107-296,
§§ 101, 441-478, 116 Stat. 2135, 2142, 2192-2212 (codified at 6
U.S.C. §§ 111, 251-298) (establishing Department of Homeland
Security and vesting in it responsibility for border security and
immigration).
5
Petitioners were to be released in accordance with a detailed
plan, developed with Lutheran Immigration and Refugee Services, the
president of the World Uighur Congress, and others for their housing
with Uighur families in the area, transportation, financial support, and
care. See Oct. 2008 Mot. Hr’g Tr. at 49-52, 63. They acknowledged
through counsel that conditions for bringing them into the country
presented issues for the Department of Homeland Security. Id. at 52.
 5

at 2266. The court seems to have relied on Zadvydas v. Davis,
533 U.S. 678 (2001), and Clark v. Martinez, 543 U.S. 371
(2005), for the proposition that petitioners could no longer be
detained, see 2008 Mem. Op. at 8. But in those cases the
Supreme Court first assessed the Executive’s arguments that it
had the right to detain under the immigration statutes before
finding that power had expired and ordering release. Clark, 543
U.S. at 386-87; Zadvydas, 533 U.S. at 699. In so doing, the
Court gave effect to both the province of the Great Writ as a
check on unjustified detention and the power of the political
branches over exclusion and admission of aliens into the
country. See Zadvydas, 533 U.S. at 695 (noting that purported
“plenary powers” of Congress to create immigration law are
“subject to important constitutional limitations”); see Clark, 543
U.S. at 384. To instead order release before assessing asserted
legal authority for detention is incompatible with the obligation
of a habeas court. See infra, Part II. Even if the Executive’s
delay in raising the immigration statutes as a basis for detention
appears troubling given its opportunity to file returns to the
writs, as the petitioners asserted they did not seek an
immigration remedy, Oct. 2008 Mot. Hr’g Tr. at 7, the
Executive cannot have waived the argument when it raised the
argument in response to the district court’s rejection of its other
rationales for detention.

Because the district court could not properly order release
into this country when it could not yet know whether detention
was justified, I concur in the judgment vacating the release
order. Because the question of whether the immigration statutes
provide that justification “cannot be resolved at this stage,” Maj.
Op. at 12 n.14, I would remand the case for that determination
to be made.
 6

II.

In reversing and remanding, the majority has written
broadly, apparently concluding that a habeas court is without
power to order the release into this country of Guantanamo
detainees whom the Executive would prefer to detain
indefinitely, where there is no legal basis for that detention,
including no contention that these petitioners are “enemy
combatants” or a showing that they are even dangerous. Maj.
Op. at 8. Because this court does not know if detention could be
authorized here, the majority need not reach that issue. More
fundamentally, its analysis compromises both the Great Writ as
a check on arbitrary detention, effectively suspending the writ
contrary to the Suspension Clause, art. 1, § 9, cl. 2, and the
balance of powers regarding exclusion and admission and
release of aliens into the country recognized by the Supreme
Court to reside in the Congress, the Executive, and the habeas
court. Consequently, I cannot join it.

A.
The Executive urges this court to recognize an extra-
statutory, perhaps constitutional, Executive power to detain in
order to prevent an alien from entering the United States. See
Appellants’ Br. at 21. Supreme Court precedent indicates there
is no such power, and the Executive’s authority to exclude and
remove aliens, and to detain them to effect that end, must come
from an explicit congressional delegation, as the majority’s
citations confirm, Maj. Op. at 7. See, e.g., Zadvydas, 533 U.S.
at 696-99; Galvan v. Press, 347 U.S. 522, 531 (U.S. 1954) (“As
to the extent of the power of Congress [in regulating the entry
and deportation of aliens], there is not merely ‘a page of
history,’ but a whole volume. . . . [T]hat the formulation of
these policies is entrusted exclusively to Congress has become
about as firmly imbedded in the legislative and judicial tissues
of our body politic as any aspect of our government.”) (citations
 7

omitted, emphasis added); Fong Yue Ting v. U.S., 149 U.S. 698,
713 (1893); Ekiu v. United States, 142 U.S. 651, 659-60 (1892)
(the power to detain, remove, and exclude aliens “may be
exercised either through treaties made by the president and
senate, or through statutes enacted by congress”); Chae Chan
Ping v. United States (Chinese Exclusion Case), 130 U.S. 581,
603 (1889). It would be surprising under our constitutional
system if the law were otherwise. See Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 640 (1952) (Jackson, J.,
concurring) (“I did not suppose, and I am not persuaded, that
history leaves it open to question, at least in the courts, that the
executive branch, like the Federal Government as a whole,
possesses only delegated powers. The purpose of the
Constitution was not only to grant power, but to keep it from
getting out of hand.”). Even the single apparent outlier to this
line of precedent, which stated that the power to exclude aliens
“stems not alone from legislative power but is inherent in the
executive power to control the foreign affairs of the nation,”
U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950), is
no outlier at all. In Knauff, the Court upheld the challenged
action because it was authorized by statute, albeit in “broad
terms,” id. at 543, thereby acknowledging that the political
branches act on matters of exclusion and admittance through
statutes and treaties.

Where the Executive claims need of a power not yet
delegated in order to control entry into the country, the Supreme
Court has instructed it to look to Congress for a remedy. See
Clark, 543 U.S. at 386 (“The Government fears that the security
of our borders will be compromised if it must release into the
country inadmissible aliens who cannot be removed. If that is
so, Congress can attend to it.”); see also Uniting and
Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001
(“USA PATRIOT ACT”), Pub. L. 107-56, § 412(a), 115 Stat.
 8

272, 350 (codified at 8 U.S.C. § 1226a(a)(6)) (providing
Attorney General authority to detain terrorist aliens pursuant to
removal longer than six months under certain circumstances,
after the Supreme Court in Zadvydas found no such statutory
authority then existed, 533 U.S. at 691). Other statutory
justification may also exist in some cases. See Clark, 543 U.S.
at 387 (O’Connor, J., concurring) (pointing out that the
Executive “has other statutory means for detaining aliens whose
removal is not foreseeable and whose presence poses security
risks,” including authority under the USA PATRIOT ACT). If
these petitioners present “special circumstances,” Zadvydas, 533
U.S. at 696, as the Executive appears to suggest, see supra n.3,
Congress may, within constitutional limits, provide a remedy, id.
at 695.

Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206
(1953), relied on by the majority (and the Executive), Maj. Op.
at 10, is not to the contrary. That case does not stand for the
proposition that any detention by the Executive is authorized if
it serves to effect exclusion of an alien whom the Executive
chooses not to admit. To the contrary, the Supreme Court
looked to a statute then in effect and since repealed, wherein
Congress had “expressly authorized” the President to exclude
aliens without a hearing when the Attorney General determined
entry would be prejudicial to the interests of the United States.
345 U.S. at 210. The Attorney General so determined and
ordered the petitioner excluded on the basis of confidential
information. Id. at 208. Thus, in Mezei the Supreme Court
recognized broad Executive power not because it was inherent
to the Office of the President, but because in Mezei’s case that
power was specifically authorized by Congress. Id. at 216
(“[R]espondent’s right to enter the United States depends on the
congressional will, and courts cannot substitute their judgment
for the legislative mandate.”). Mezei is thus another case in
 9

which the Supreme Court found detention justified because it
was authorized by statute.

B.
The majority does not adopt outright the Executive’s
argument that detention here is justified under an extra-statutory
Executive power, but instead seems to conclude that the habeas
court lacks the power to order the release of non-“enemy
combatant” Guantanamo detainees from indefinite detention,
even where such detention is not justified by statute. The effect,
however, is much the same. To reach this conclusion, the
majority has recast the traditional inquiry of a habeas court from
whether the Executive has shown that the detention of the
petitioners is lawful to whether the petitioners can show that the
habeas court is “expressly authorized” to order aliens brought
into the United States. Maj. Op. at 8. Along the way, the
majority’s analysis, Maj. Op. at 11-12, tends to conflate the
power of the Executive to classify an alien as “admitted” within
the meaning of the immigration statutes, and the power of the
habeas court to allow an alien physically into the country.6 But

6
See Zadvydas, 533 U.S. at 695 (“The question before us is
not one of ‘“confer[ring] on those admitted the right to remain against
the national will”’ or ‘“sufferance of aliens”’ who should be removed.
Rather, the issue we address is whether aliens that the [Executive]
finds itself unable to remove are to be condemned to an indefinite term
of imprisonment within the United States.” (citation omitted)); Mezei,
345 U.S. at 212 (an inadmissible alien, although physically present in
the United States, is deemed to be “only on the threshold of initial
entry”); see also 8 U.S.C. § 1182(d)(5)(A); Leng May Ma v. Barber,
357 U.S. 185, 188 (1958); United States v. Ju Toy, 198 U.S. 253, 263
(1905) (Holmes, J.) (“The petitioner, although physically within our
boundaries, is to be regarded as if he had been stopped at the limit of
our jurisdiction, and kept there while his right to enter was under
debate.”). The district court here was presented with motions for
“parole” and for release.
 10

this analysis, like the majority’s rights/remedy discussion, Maj.
Op. at 9-10, ignores the very purpose of the Great Writ and its
province as a check on arbitrary Executive power. The power
to grant the writ means the power to order release.7 Preiser v.
Rodriguez, 411 U.S. 475, 484 (1973) (“[T]he essence of habeas
corpus is an attack by a person in custody upon the legality of
that custody, and . . . the traditional function of the writ is to
secure release from illegal custody.”); see 3 WILLIAM
BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *133
(Liberty is a “natural inherent right” which ought not “be
abridged in any case without the special permission of law,” and
“[t]his induces an absolute necessity of expressing upon every
commitment the reason for which it is made; that the court upon
an habeas corpus may examine into its validity; and according
to the circumstances of the case may discharge, admit to bail, or
remand the prisoner.”); THE FEDERALIST NO. 84, at 629
(Alexander Hamilton) (John C. Hamilton Ed. 1869) (describing
habeas corpus as “a remedy for [the] fatal evil” of “arbitrary
imprisonment”); 2 JAMES KENT, COMMENTARIES ON AMERICAN
LAW *32 (O.W. Holmes, Jr., ed., Little Brown, & Co. 12th ed.
1873) (“[The] excellence [of habeas corpus] consists in the easy,

7
As petitioners have not styled their pleadings as
compensatory claims, the majority’s citations to Heck v. Humphrey,
512 U.S. 477, 481 (1994), and Preiser v. Rodriguez, 411 U.S. 475,
493 (1973), which addressed monetary claims, are to that extent
irrelevant. Maj. Op. at 13. So too are the citations in the majority’s
discussion of a right/remedy dichotomy, Maj. Op. at 9-10, e.g., Wilkie
v. Robbins, 127 S. Ct. 2588, 2597-98 (2007), where the question was
whether a new cause of action should be created to provide a remedy
for a constitutional harm under Bivens. Likewise, the citation to
Munaf v. Geren, 128 S. Ct. 2207 (2008) , Maj. Op. at 11, is inapposite;
unlike the petitioners in Munaf, petitioners here are not seeking to
circumvent the local law and in fact disavowed any intention to
change their status under the immigration laws through habeas. Oct.
2008 Mot. Hr’g Tr. at 7.
 11

prompt, and efficient remedy afforded for all unlawful
imprisonment . . . .”).

Furthermore, the majority has mischaracterized relevant
precedent. The majority offers that the district court did not
have the power to order that petitioners be released into the
United States because such an order would impermissibly “set
aside the decision of the Executive Branch” to deny petitioners
release into the United States. Maj. Op. at 8. But the Supreme
Court in Clark makes clear that a district court has exactly the
power that the majority today finds lacking — the power to
order an unadmitted alien released into the United States when
detention would otherwise be indefinite. 543 U.S. 368, 386-87
(2005). The majority notes that Clark, like Zadvydas, 533 U.S.
678, rested on the proposition that detention was unauthorized
by the immigration statutes. Maj. Op. at 10-11. But that only
goes to whether detention is justified. Relevant here is that once
the Supreme Court concluded the detention was unlawful, it
ordered the aliens released into the United States. If the
majority were correct that a habeas court, upon finding that the
Executive detains indefinitely an unadmitted alien without
authorization, is nonetheless powerless to order release, then the
Executive in Clark could have continued the detention, even
without legal justification. Instead, the Supreme Court held that
“the petitions for habeas corpus should have been granted.” 543
U.S. at 386-87.

The majority also offers that because petitioners are aliens
outside the United States and have not applied for visas they are
not entitled to the same due process as the aliens in Zadvydas
and even Clark. Maj. Op. at 8-9, 11 (citing, e.g., Johnson v.
Eisentrager, 339 U.S. 763, 784 (1950)). However, in
Boumediene, 128 S. Ct. at 2257, the Supreme Court rejected this
territorial rationale as to Guantanamo, holding that detainees
who were brought there involuntarily were entitled under the
 12

Constitution to seek habeas relief because “[i]n every practical
sense Guantanamo is not abroad; it is within the constant
jurisdiction [and “plenary control”] of the United States.” 128
S. Ct. at 2261. It held further that whether a substitute process
“satisf[ied] due process standards” was not “the end [of the
Court’s] inquiry,” because “[h]abeas corpus is a collateral
process that exists, in Justice Holmes’ words, to ‘cu[t] through
all forms and g[o] to the very tissue of the structure.’” Id. at
2270 (quoting Frank v. Mangum, 237 U.S. 309, 346 (1915)
(dissenting opinion)). Furthermore, the majority does not
explain how a lack of procedural due process rights in
petitioners, which it asserts and uses to distinguish Clark, Maj.
Op. at 18, would go to the power of the court, which the
majority finds lacking, Maj. Op. at 11-12.

In sum, the majority aims to safeguard the separation of
powers by ensuring that the judiciary does not encroach upon
the province of the political branches. But just as the courts are
limited to enumerated powers, so too is the Executive, and the
habeas court exercises a core function under Article III of the
Constitution when it orders the release of those held without
lawful justification. Indeed habeas is not an encroachment, but
“a time-tested device” that “maintain[s] the ‘delicate balance of
governance’ that is itself the surest safeguard of liberty,”
Boumediene, 128 S. Ct. at 2247 (quoting Hamdi v. Rumsfeld,
542 U.S. 507, 536 (2004) (plurality opinion)). The petitioners
have the privilege of the writ including the right to invoke the
court’s power to order release, 128 S. Ct. at 2262, 2270, and the
Supreme Court’s decision in Clark shows that a habeas court has
the power to order the release into the United States of
unadmitted aliens whom the Executive would prefer to detain
indefinitely but as to whom the Executive has exercised no
lawful detention authority. The petitioners seeking release into
the United States are seventeen Uighurs who come to the court
as unadmitted aliens who are not “enemy combatants” or
 13

otherwise shown by the Executive, when afforded the
opportunity, to be dangerous or a threat to U.S. interests, and as
to whom the Executive as yet has failed to show grounds for
their detention, which appears indefinite. Because the district
court prematurely determined the petitioners were entitled to be
released into the country prior to ascertaining whether the
Executive, as asserted, would have lawful grounds to detain
them under the immigration statutes, I concur with the judgment
and would remand the case so that the district court could so
ascertain. Unlike the majority, however, I would conclude,
consistent with the province of the Great Writ and the power of
the political branches, that, were the district court to ascertain
thereafter that petitioners’ detention is not lawful and has
become effectively indefinite, then under Clark, 543 U.S. at
386-87; see supra n.6, it would have the power to order them
conditionally released into the country.