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Kiyemba v. Obama

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Synopsis

Kiyemba v. Obama is a habeas corpus petition filed in the D.C. District Court on behalf of 17 innocent Uighur men who have been imprisoned in Guantánamo Bay for almost seven years. The government acknowledged as early as 2003 that the imprisoned Uighurs were improperly detained and eligible for release. They remain imprisoned because a transfer to China would be illegal as they would be at grave risk of torture or other forms of persecution; and the US government has both refused to accept the men into the US and been unwilling or unable to find other countries willing to accept them.

Status

On October 7, 2008, the Honorable Ricardo Urbina, a federal Judge in the D.C. District Court responsible for the Kiyemba habeas petition, ordered that all 17 men be released into the United States by Friday, October 10. After nearly seven years of litigation and imprisonment, Judge Urbina’s order was the first time that a district court judge had ordered Guantánamo prisoners released from prison on a habeas corpus petition.  The government immediately requested a stay of the decision and appealed the case to the DC Circuit Court.  On February 18, 2009, the DC Circuit Court reversed the lower courts decision, effectively prolonging the unlawful detention of the Uighurs.  On April 3, 2009, the Uighurs submitted a Petition for Writ of Certiorari to the US Supreme Court, asking them to hear their case.  The case is now pending before the US Supreme Court.

Description

The United States government has imprisoned nearly 800 men in Guantánamo Bay between 2002 and today. Many of these men were imprisoned because, in the chaos of war, they were turned over to the US military in response to the promises of rich bounties. These men included 17 Uighur men who remain imprisoned today.

Uighurs are an ethnic minority population that has historically been discriminated against by the Chinese government. To escape persecution, many Uighurs have fled China seeking refuge in other countries. The Uighurs held in Guantánamo fled China and resettled in small villages in Afghanistan, where they lived peacefully until the outbreak of war in 2002 when their villages were bombed and they were forced to flee their homes once again. Escaping to Pakistan, they were arrested by Pakistani authorities crossing the border and many were sold to the U.S. military for a sizable bounty.

Following the Supreme Court’s decision in Rasul v. Bush in 2004, which first recognized that Guantánamo detainees had the right to an attorney and the right to file a habeas corpus petition to contest their imprisonment, CCR and pro bono attorneys from Bingham McCutchen LLP, Kramer Levin Naftalis & Frankel LLP, and Miller & Chevalier, as well as private attorney Elizabeth P. Gilson filed habeas corpus petitions on behalf of all of the Uighurs in Guantánamo Bay.

As early as 2003, US government officials recognized that the Uighurs at Guantánamo had been wrongly detained and should be released. In 2004, five of the original 22 Uighurs were officially declared non-enemy combatants and were subsequently transferred in 2006 to Albania, the only country willing to take them in and grant them refugee status. In 2006, the remaining 17 continue to languish in Guantánamo, often held in harsh conditions and solitary confinement, and despite virtually identical facts to those released and now living as recognized refugees. Unable to return to China, but with no country willing to offer them refuge, these innocent men remain stranded in Guantánamo Bay.

On June 12, 2008 the US Supreme Court decided the case of Boumediene v. Bush recognizing that Guantánamo prisoners have a constitutional right to challenge their detention through habeas corpus in U.S. federal courts, and that Congress’ attempt to strip them of that right and create an inadequate substitute for habeas was unconstitutional.

Soon thereafter, on June 20, 2008, the D.C. Circuit Court of Appeals ruled in Parhat v. Gates, that the Combatant Status Review Tribunal (CSRT) decision that designated Houzaifa Parhat, one of the 17 Uighurs, as an “enemy combatant” was not valid, and rebuked the evidence presented by the government as insufficient, unreliable and based on attenuated guilt-by-association reasoning. The Circuit Court ordered the government to “release Parhat, to transfer him, or to expeditiously convene a new Combatant Status Review Tribunal to consider evidence submitted in a manner consistent with” the court’s opinion.”

The Circuit Court also directed that Parhat could pursue a habeas corpus proceeding in the district court “immediately, without waiting to learn whether the government will convene another CSRT…[and] in that proceeding there is no question but that the court will have the power to order him released.”

The status determinations of the remaining Uighurs relied on the same assertions and reasoning as that of Parhat. Thus, the U.S. government conceded that the D.C. Circuit’s decision in Parhat would apply equally to the remaining Uighurs, that none would be subjected to new CSRTs, and that all would be treated as non-enemy combatants. The government effectively conceded that all were improperly detained, but nevertheless continued to challenge the jurisdiction of the U.S. federal courts to order their release into the United States.

Attorneys for the Uighurs subsequently filed a motion for their immediate release into the United States, or conversely for parole into the United States pending the conclusion of their habeas petitions.

On October 7, 2008, D.C. District Court Judge Ricardo M. Urbina heard the case of Kiyemba v. Bush, the consolidated habeas petition on behalf of all 17 Uighurs. After hearing arguments from both sides, Judge Urbina ruled that the Uighurs should be released from Guantánamo Bay and be immediately brought into the United States for a subsequent hearing on the conditions of their release. Judge Urbina refused the government’s request that a stay pending appeal or administrative stay be entered in the case. However, the government sought and received from the D.C. Circuit Court an administrative stay of Judge Urbina’s order and is seeking a stay pending a final resolution of the government’s appeal on the merits. In attempts to further postpone their release and deny them their freedom, the government appealed to the D.C. Circuit Court asking for an emergency stay of the District Court’s ruling. The Circuit Court is reviewing the government’s stay motion on an expedited schedule.

 

Timeline

On July 29, 2005, Houzaifa Parhat and eight other Uighurs imprisoned at Guantánamo sought habeas relief in Kiyemba v. Bush.

On September 13, 2005, the D.C. District Court ordered the government not transfer Mr. Parhat or the other petitioners out of the jurisdiction without giving advance notice, and otherwise stayed the case pending appeals in other habeas cases of Guantánamo detainees.

On December 4, 2006, Mr. Parhat filed a petition in the D.C. Circuit Court of Appeals under the Detainee Treatment Act (DTA).

On January 4, 2008, Mr. Parhat moved for judgment in his DTA’s case, even without the record that the government was ordered to – but refused to – provide. Attorneys for Mr. Parhat argued that, even relying on the government’s evidence, there was no justification for Mr. Parhat’s detention as an enemy combatant.

On June 12, 2008, the Supreme Court decided Boumediene v. Bush, recognizing that Guantánamo prisoners have the constitutional right of habeas corpus, and that that right was not stripped by the Military Commissions Act (MCA).

On June 20, 2008, the D.C. Circuit Court of Appeals decided Parhat v. Gates, ruling that the Combatant Status Review Tribunal (“CSRT”) decision that designated Houzaifa Parhat, one of the 17 Uighurs, as an “enemy combatant” was not valid, and rebuked the evidence presented by the government as insufficient, unreliable and based on attenuated guilt-by-association reasoning. The Circuit Court ordered the government to “release Parhat, to transfer him, or to expeditiously convene a new Combatant Status Review Tribunal to consider evidence submitted in a manner consistent with the court’s opinion.”

On July 10, 2008, D.C. District Court Chief Judge Thomas F. Hogan, the coordinating judge assigned to many Guantánamo cases, ordered that all habeas petitions filed on behalf of the 17 Uighur detainees be consolidated as Kiyemba v. Bush before D.C. District Court Judge Ricardo M. Urbina.

On July 18, 2008, counsel for the Uighurs provided the D.C. District Court with a status report on behalf of their clients.

On July 23, 2008, counsel for Houzaifa Parhat filed a motion for judgment on his habeas petition seeking release into the United States, or alternatively for interim parole.

On August 4, 2008, the government informed the D.C. Circuit Court that it would not convene a new Combatant Status Review Tribunal for Houzaifa Parhat, and effectively conceded that they would not argue that he is properly detained as an “enemy combatant.”

On August 18, 2008, the government moved in the Circuit Court to enter the Parhat judgment in the case of four other Uighur petitioners – Khalid Ali, Sab’r Osman, Abdusemet, and Jalal Jallaladin.

On August 21, 2008, D.C. District Court Judge Urbina held a status conference in Kiyemba v. Bush. In the status conference, the government conceded that four other imprisoned Uighurs would be treated as non-enemy combatants with the same status as Mr. Parhat.

On September 11, 2008, counsel for the Uighurs sought procedures for a scheduled October 7, 2008 hearing that included the right of four petitioners to be present at the hearing in Washington D.C., and the remaining petitioners to be present at the hearing via teleconference in Guantánamo.

On September 24, 2008, the government opposed the request by the Uighurs that they be allowed to be present in person or via teleconference at the October 7, 2008 hearing. The government stated that the hearing would only involve legal issues, and further that the Court needed to determine initially whether petitioners had a right to enter the United States based in part on the hearing before the Court could allow them to even be present for a hearing.

On September 29, 2008, the government refused the petitioners’ request that they be permitted to be present at the October 7, 2008 hearing.

On September 30, 2008, in response to an order of the Court, the government conceded that it would not assert that any of the Uighur prisoners are properly imprisoned as “enemy combatants”: all would be treated as non-enemy combatants with the same status as Mr. Parhat.

On October 7, 2008, in the second hearing before Judge Urbina after full briefing by all parties, Judge Urbina ordered that all 17 Uighur prisoners be released into the United States and brought into Court Friday, October 10, 2008 at 10 am. After the government’s refusal to engage in a pre-scheduled hearing regarding the conditions of release with witnesses present to testify to their willingness to receive, house and support the Uighurs upon their release into the United States, Judge Urbina scheduled a hearing regarding conditions of their release for Thursday, October 16, 2008. A formal order was entered October 8, 2008; the written opinion was entered on October 9, 2008.

On October 7, 2008, after the Uighurs in Guantánamo had been notified of Judge Urbina’s release order after nearly seven years of imprisonment, the government sought an emergency stay of Judge Urbina’s release order.

On October 8, 2008, the Uighurs contested the government’s motion for an emergency administrative stay. On the same day, the Circuit Court granted an emergency administrative stay of the District Court’s release order. The Circuit Court made no statement regarding the merits of the government’s appeal or motion for stay pending appeal, and scheduled expedited on the government’s stay motion.

On October 10, 2008, the government filed a motion for a stay pending appeal of the District Court order. The government sought an expedited briefing schedule for the appeal of the lower court’s order.

On October 14, 2008, counsel for the Uighurs opposed the government’s motion for a stay pending appeal. They argued that a stay was inappropriate and not properly justified by the government.

On October 20, 2008, the DC Circuit Court granted the stay motion and ordered an expedited schedule for the appeal.  Judge Rogers issued a dissenting opinion. 

On October 21, 2008, counsel for the Uighurs filed a petition asking for a rehearing en banc of panel's order granting a stay pending appeal.

On October 24, 2008, the Circuit Court denied the Uighurs' petition for a rehearing en bance of the panel's order granting a stay pending appeal. Judges Rodgers and Brown went on record as favor of granting the petition.

On October 24, 2008, the government filed their appeal brief in the Circuit Court.

On February 18, 2009, the DC Circuit Court of Appeals reversed the October 2008 judgment of the DC District Court which ordered the 17 non-enemy combatant Uighurs unlawfully detained in Guantanamo Bay to be released into the United States.  The Circuit Court remanded the case back to the District Court for reconsideration.

On April 3, 2009, the Uighurs submitted their Petition for the Writ of Certiorari to the US Supreme Court.

On October 20, 2009, the US Supreme Court granted the Uighurs' Petition for the Writ of Certiorari.

On December 4, 2009, the Uighurs submitted their opening brief to the US Supreme Court.

To learn more about the Uighurs and other refugees stranded in Guantanamo click here.

Attached Files