Justices Deliver Order for New Kiyemba Briefs: Possible Dismissal?
On Friday, February 12 the Supreme Court Justices issued an order requesting the parties in the Kiyemba case to file new briefs by this Friday. The order came after new developments in the release of the Uighur Detainees. Behind the formal terms of the order, the Court asked a Constitutional question that has been building since Boumediene v. Bush . As summarized by SCOTUSblog: “When does the judicial power to decide the legal fate of military detainees end so that, thereafter, their fates rest within the discretion of the Executive Branch (with or without action by Congress)?”
The Uighur’s counsel will argue that the release or possible release does not remove the need for the Court to decide this case and the government will argue that the developments substantially change the case and the Court should dismiss it without a ruling. See SCOTUSBlog. If the court does dismiss, the dismissal has the practical effect of altering the issue at hand. A dismissal would shift the question from: do the Uighurs (and other detainees in similar positions) have a right to release as a matter of law to can the Executive make arrangements for that release, despite detainee rights? Dismissal could also have the effect of stripping from Federal Judges the authority to consider the issue of release all together. This is big. The potential impact of the Court moving forward with Kiyemba or dismissing the case without a ruling will get any National Security Law geek to the edge of their seats. Briefs are due this Friday, February 19. So get ready fellow geeks. For a full analysis of the implications surrounding the Court’s order and a link to that order see SCOTUSBlog.