A Right Without a Remedy?

By Benjamin Wittes
Thursday, January 27, 2011, 3:51 PM

The responses to my "Embrace Guantanamo" post from Sabin Willett, David Remes, and Gabor Rona have a common argumentative thread that strikes me as warranting a response. Not that it's wrong, exactly, but the reader might draw an erroneous conclusion from their posts concerning the extent to which habeas has become a toothless process that can't guarantee anyone's release.

Willett, Remes, and Rona  each put the matter slightly differently, but they are all suggesting the same thing. Willett writes, "A fellow wins his case against the government and the remedy is for the court to say to the jailer, 'please will you do something about it?'" Remes says, "the D.C. Circuit has been making it ever easier for the government to justify detentions and has barred district court judges from compelling the government to release men found to be unlawfully detained. The D.C. Circuit has made habeas a right without a remedy. . . ." And Rona worries that, "many people [at Guantanamo] should not have been detained, including many who continue to be detained, even after exoneration in habeas proceedings."

You would think that Guantanamo is full of people who have won their habeas cases but whom the government refuses to let go, flouting feckless court orders with nothing behind them. The reality is rather different.

It is true that the government resisted an order to bring detainees to the United States and that the D.C. Circuit held that the courts lack the power to force it to set a detainee free here. This does potentially create a long-term limbo for a hypothetical detainee ordered freed in a habeas case but who cannot return home (because of fears of torture) and whom the government cannot resettle elsewhere. It is also true that arranging repatriation or resettlement of detainees ordered freed has sometimes taken some time--making that specter look real for a spell.

But it is not true that there are many such detainees at Guantanamo now. In fact, I don't think there are currently any--though, as with many such debates, I suppose it depends how one counts. Here is how I count--and how I get the number zero.

First of all, when the government loses a habeas case, it has the option of appealing. This is hardly lawless, so the relevant group of detainees for analysis cannot be the group that has won a district court habeas judgment but the smaller group that has won either a final judgment or a judgment the government chose not to contest on appeal.

There have been a number of such cases, and while it has sometimes taken the government a while to effectuate transfers of such people, there is simply no evidence that the government has not attempted in good faith to comply with all final orders or orders it has not sought to appeal. What's more, there is no reason to think the government has treated these orders as something less than binding upon it. Where a detainee's country of origin has been available to take him back or where a resettlement option is immediately available, the government has simply implemented them. Where repatriation was not an option, it has sought resettlement opportunities in order to comply. And it has done so successfully. With the exception of a group of five Uighurs, there are no people left at Guantanamo who have been ordered released in an order that is not the subject of a pending appeal. As the government described it in a brief last summer,

Of the 36 detainees other than the Uighurs with habeas petitions that have been adjudicated since Boumediene v. Bush, 128 S. Ct. 2229 (2008), 12 have obtained an order granting habeas that is final and not subject to appeal.  In each case, the district court ordered essentially the same remedy, i.e., that the Executive Branch “to take all necessary and appropriate diplomatic steps to facilitate the [habeas petitioner’s] release.”  All 12 petitioners have been released from Guantanamo.

So while in theory, one might say that the D.C. Circuit has left habeas at Guantanamo as a right without a remedy, in fact, a final order of release has meant, well, release.

Ah, you are saying, but what about those five Uighurs? Surely they are examples of a situation in which habeas has been denuded of its content. They were ordered released a long time ago, after all, and they are still there because the government can't find a place for them, right? Not if you believe the Supreme Court.

In a per curiam opinion last year, the justices punted the matter on grounds that,

By now . . . each of the detainees at issue in this case has received at least one offer of resettlement in another  country. Most of the detainees  have accepted an offer of resettlement; five detainees, however, have rejected two such offers and are still being held at Guantanamo Bay.
Indeed, while the facts surrounding what resettlement options were available to which detainees remain somewhat murky, Willett's own brief asking the Supreme Court to take the case again (Willett represents the remaining Uighurs) concedes that,
in the summer of 2009, the Republic of Palau extended an offer to twelve of the thirteen remaining  Uighurs: it would “temporarily relocate” to Palau those who volunteered to come. . . . Six Uighurs accepted.  The five petitioners declined the offer.
In other words, the Uighurs who remain at Guantanamo remain there not because the United States refuses to let them go or couldn't arrange a resettlement, but because they rejected the arrangements that had been made for them.
All of which leads me to a simple question: For whom has Guantanamo habeas really provided a right without a remedy?