Balance Of Power Clash At The Supreme Court

The Supreme Court will decide whether the president can keep detainees in custody even after it acknowledges that they do not pose a threat to the United States. The case, Kiyemba v. Obama, asks whether courts ought to defer to the executive branch and Congress on all matter of detainee disposition. 17 Chinese Uighers were ordered released by a federal judge. 11 remain in custody. Earlier this year, the U.S. Court of Appeals for the District of Columbia Circuit said that courts didn't have the authority to force the U.S. to free the Uighers inside the United States. The court held, in essence, that once the Uigher's habaes corpus petitions were sustained, they became refugees -- aliens of some sort -- and U.S. courts have never had the authority to order the executive branch -- immigration officials -- to admit them legally into the United States.

The Uighers are in a legal no-man's land, then -- if their detention is no longer authorized but their freedom cannot be secured, what in the heck do you with them? The Obama administration's response was: we know there are thorny legalities, but give us time -- let us wrap up the GMTO detention disposals, let us try to get other countries to accept them.   Lawyers for the Uighers say that habeas corpus means nothing if, when granted, the court has no available remedy. So under the basic separation of powers doctrine -- under the premise that the Great Writ has real force -- the court must be able to ensure that unlawfully detained prisoners are freed. 

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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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