Document Type
Brief
Publication Date
12-10-2009
Abstract
Amici curiae are the immigration and constitutional law professors whose individual names appear in the Appendix to this Brief. Amici have expertise in the constitutional law of the United States relating to immigration and due process, as well as the statutes and rules governing entry, admission, detention and parole of non-citizens in the United States. With the consent of the parties, we offer our views on the historical and contemporary meaning of several major decisions of this Court, including Shaughnessy v. United States ex rel. Mezei ("Mezei"), 345 U.S. 206 (1953), Zadvydas v. Davis, 533 U.S. 678 (2001) ("Zadvydas") and Clark v. Martinez ("Martinez"), 543 U.S. 371 (2005). We write to share our expertise with the Court and to place Mezei in context so that its holding may be properly understood.
Although the government relics heavily on Mezei, amici believe for the reasons explained below that Mezei, properly understood, does not pose a significant barrier to the power of Article III court to require the Government to produce these habeas corpus Petitioners before that same court and to provide a remedy for their prolonged unlawful detention "as law and justice require." 28 U.S.C. { 2243 (2008). Amici believe that Mezei was an unfortunate product of its time and would welcome a decision overruling it. However, amici also believe that Mezei has been significantly narrowed by this Court's more recent decisions and the Court need not overturn Mezei to decide this case. Petitioners' claims do not involve the Executive's power under the immigration laws, but the right to liberty protected by the Constitution, Constitutional restrictions on unlawful detention, and the scope of the Great Writ.
This case is about the fundamental limits placed by law on Executive power to imprison people on government-controlled territory. Petitioners are not immigrants in any meaningful sense of the term. They have never sought to live in the United States. Indeed, their involvement with the United States has been completely involuntary.
The seizure, isolation, rendition without process, and detention of non-combatant civilians by the executive branch of government, as is the case here, present basic and profound challenges to fundamental human rights. This Court recognized in Boumediene v. Bush, 128 S. Ct. 2229 (2008), that the writ of habeas corpus was designed to secure individual liberty as "an essential mechanism in the separation-of-powers scheme...," Id. at 2246. by calling "the jailer to account." Such judicial action neither deprecates governmental authority to protect national security nor violates appropriate principles of judicial deference. For "freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers" are among "freedom's first principles." ld. at 2277.
Recommended Citation
Avi-Yonah, Reuven S., "Kiyemba v. Obama: Brief of Amici Curiae Law Professors in Support of Petitioners" (2009). Appellate Briefs. 22.
https://repository.law.umich.edu/briefs/22
Comments
Amicus: Abraham, Professor David; Ahmad, Professor Muneer I.; Akram, Professor Susan; Aldave, Professor Barbara Bader; Anker, Professor Deborah; Annas, Professor George J.; Ardalan, Professor Sabrineh; Avi-Yonah, Professor Reuven; Benson, Professor Lenni B.; Blumenson, Professor Eric; Bosniak, Professor Linda; Brodin, Professor Mark S.; Cassel, Professor Douglass; Chin, Professor Gabriel J.; Churgin, Professor Michael J.; Clapman, Professor Alice; Clark, Professor Roger; Cohn, Professor Marjorie; Cunningham-Parmeter, Professor Keith; Dennis, Professor Johanna K.P.; Frenzen, Professor Niels W.; Galowitz, Professor Paula; Gilman, Professor Denise; Gottlieb, Professor David J.; Gulasekaram, Professor P.; Gupta, Professor Anjum; Harding, Professor Roberta M.; Haynes, Professor Dina Francesca; Hing, Professor Bill Ong; Hoffman, Professor Geoffrey A.; Hyde, Professor Alan; Johnson, Professor Kevin R.; Kalhan, Professor Anil; Kaplan, Professor Harvey; Kidane, Professor Won; Khan, Professor L. Ali; Lee, Professor Eunice; Malhotra, Professor Anjana; McCormick, Professor Elizabeth; Moore, Professor Andrew F.; Moore, Professor Jennifer; Motomura, Professor Hiroshi; Musalo, Professor Karen; Nafziger, Professor James A.R.; Nessel, Professor Lori A.; Olivas, Professor Michael A.; Rogerson, Professor Sarah; Romero, Professor Victor C.; Rosenbloom, Professor Rachel E.; Ruthizer, Professor Theodore; Saito, Professor Natsu Taylor; Scharf, Professor Irene; Shah, Professor Ragini; Shannon, Professor Careen B.; Slavin, Professor Jessica E.; Smith, Professor Deborah S.; Solimene, Professor Gemma; Steinbock, Professor Daniel J.; Taylor, Professor Margaret H.; Thronson, Professor David B.; Uchimiya, Professor Diane; Vaughns, Professor Katherine L.; Volpp, Professor Leti; Weisselberg, Professor Charles D.; Weissman, Professor Deborah; Wishnie, Professor Michael J.; Yale-Loehr, Professor Stephen