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.