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1 [1] (2009)
Kiyemba, et al. v. Obama, President of the United States, et al.

handle is hein.preview/prvwpepsotb0001 and id is 1 raw text is: BINGHAM Boston Hartford Hong Kong London Los Angeles New York Orange County San Francisco Santa Monica Silicon Valley Tokyo Walnut Creek Washington Bingham McCutchen LLP One Federal Street Boston, MA 02110-1726 T 617.951.8ooo F 617.951.8736 bingham.com AmkOran 85o Lr P. Sabin Willett Direct Phone: 617.951.8775 Direct Fax: 617.345.5033 sabin.willett@bingham.com February 19, 2010 Via Hand Delivery Hon. William K. Suter, Clerk Supreme Court of the United States One First Street N.E. Washington, D.C. 20543 Re: Kiyemba v. Obama, No. 08-1234 Dear General Suter: We respond to the Court's February 12, 2010 order directing the parties to address the effect, if any, of the developments discussed in the parties' letters of February 3 and 5 on the Court's grant of certiorari. Eight years into its unlawful detention, five years after the prisoner sought habeas review, and two days before the second extension on its merits brief ran, the Executive offered to resettle Petitioner Arkin Mahmud. It then announced that Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009), was moot-almost. Not actually moot, so as to require vacatur, see United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950), but moot enough to justify dismissal-leaving Kiyemba cemented in place, and Boumediene v. Bush, 128 S. Ct. 2229 (2008), of little practical relevance. Kiyemba has stripped the judicial power to order a remedy in cases within a court's jurisdiction. If successful here, the Executive's familiar tactic of imprisoning and delaying for years, then seeking dismissal at the last moment to evade review, would make Kiyemba's consequences permanent. The Court should not accept the invitation, based on circumstances uniquely within its control, to discretionary dismissal, for post-certiorari developments provide no basis for dismissal under any theory. The Court should reverse Kiyemba and remand to the district court with directions to enter appropriate orders for relief, including, if necessary-as Petitioners concede, only if still necessary in light of a record to be developed by the district judge--an order directing the prisoner's release. Boumediene, 128 S. Ct. at 2271. The Separation Of Powers Problem Created By Kiyemba Until Kiyemba, the power to give remedies in cases and controversies in which courts have jurisdiction had always been an essential attribute of judicial power under Article III, and one with which the political branches could not interfere. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995); Gordon v. United States,

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