Parties Debate How Esmail Concurrence Supports the Kiyemba Cert. Petition

Today counsel for the five Kiyemba v. Obama petitioners who are seeking cert. in the Supreme Court submitted a supplemental brief to augment some of the arguments they made in their petition and reply brief. I've previously explained the question presented in the Kiyemba petition and some of the background, so I assume some reader familiarity with the main issue. The Supreme Court is scheduled to consider the petition at this Friday's review conference; this will be the Court's fourth scheduled review of the petition. In the supplemental brief, petitioners direct the Court's attention to the third of Judge Laurence Silberman's three points from his concurrence in Esmail v. Obama, issued last week (see Ben's discussion here). They argue that his description of the D.C. Circuit's earlier Kiyemba decisions illuminates why the Court should grant cert. in this case: because those decisions created an untenable discord with the Supreme Court's Boumediene decision. The Solicitor General's office then submitted a reply to the Court disputing the petitioners' argument. The petitioners' brief is short, so I've quoted it and the excerpt from Judge Silberman's concurrence in their entirety. They write (footnotes omitted):

Pursuant to Supreme Court Rule 15.8, Petitioners submit this supplemental brief, calling the Court’s attention to the concurring opinion of Senior Circuit Judge Laurence H. Silberman in a decision issued last week by the Court of Appeals. Esmail v. Obama, no. 10-5282, slip op. (D.C. Cir. Apr. 8, 2011) (per curiam). A copy of the decision is attached in the Appendix (“App.”). Judge Silberman’s opinion confirms Petitioners’ submission that the decision below has effectively rendered this Court’s decision in Boumediene v. Bush, 553 U.S. 723 (2008), a nullity. Esmail affirms a decision of the district court denying the writ to a Guantánamo petitioner. While the holding does not address remedy in offshore habeas cases, the concurring opinion observes that, because of the Kiyemba decisions, the habeas jurisdiction recognized by this Court in Boumediene has essentially  been nullified:

Of course, if it turns out that regardless of our decisions the executive branch does not release winning  petitioners because no other country will accept them and they will not be released into the United States, see Kiyemba v. Obama, 605 F.3d 1046, 1048 (D.C. Cir. 2010); Kiyemba v. Obama, 561 F.3d 509, 516 (D.C. Cir. 2009), then the whole process leads to virtual advisory opinions. It becomes a charade prompted by the Supreme Court’s defiant–if only theoretical–assertion of judicial supremacy, see Boumediene, 553 U.S. 723, sustained by posturing on the part of the Justice Department, and providing litigation exercise for the detainee bar. App. 7a-8a (Silberman, J., concurring).

We respectfully disagree with the view expressed that this Court’s decisions are “defiant,” but submit that Judge Silberman is correct to declare that Kiyemba has made the judicial power moribund. Following that decision, opinions are indeed advisory (if even that, since the judiciary is reduced to receiving advice rather than giving it). See Kiyemba v. Obama, 555 F.3d 1022, 1029 (D.C. Cir. 2009) (court has no “power to require anything more” than executive representations that it continues to engage in unreviewable discretionary acts). The judge’s description of the post-Kiyemba process as a “charade” is apt. The D.C. Circuit has indeed turned habeas jurisdiction under Boumediene into a show, because, until Kiyemba is reversed, the practical reality is that no court can remedy unjustified executive detention. Process without judicial remedy is not a true judicial process, and it leaves the judiciary stripped of the judicial power secured uniquely to that branch by Article III. Petitioners strenuously disagree with Judge Silberman’s suggestion that Boumediene’s assertion of the judicial power was “theoretical.” App. 8a Silberman, J., concurring). But Kiyemba has made it so, for the real “defiance” in the Guantánamo cases lies with the court of appeals. The Court should grant the petition for certiorari and resolve the conflict between this Court’s decision in Boumediene and the D.C. Circuit’s nullification of it in Kiyemba.

In response to the petitioners' brief, the DOJ said the following:

Petitioners are wrong. As the government has explained, aside from petitioners in this case, every Guantanamo Bay detainee with a final, non-appealable order granting a habeas petition has been released from United States custody and sent to his home country or another appropriate country.  Since this Court's ruling in Boumediene, 14 non-Uighur detainees have been released from Guantanamo Bay pursuant to orders granting their habeas petitions. Contrary to petitioners' contention, the writ of habeas corpus is effective at Guantanamo Bay.

The letter then goes on to explain how the same is true with all but the five Uighurs who filed the Kiyemba petition, and that the five remaining Uighurs hold the keys to their own release:

That is true with respect to the Uighur detainees as well.  Twenty-two Uighur detainees were brought to Guantanamo Bay and held in military detention. The Uighur detainees have opposed return to their home country, the People's Republic of China. Consistent with the longstanding policy of the United States not to transfer an individual to a country where he more likely than not would be tortured, the government has committed not to return petitioners there. The government has engaged in sustained and successful resettlement of the Uighur detainees. [. . .] Petitioners are the five Uighur detainees remaining at Guantanamo Bay. The United States Secured appropriate offers of resettlement for them from two different countries as well, but petitioners declined to accept those offers. The United States continues its efforts to arrange petitioners' resettlement in other countries, and also stands ready to reapproach one of the countries (Palau) that was previously offered resettlement to petitioners should they be willing to be resettled in that country.