Steve Vladeck on Rights and Remedies

By Benjamin Wittes
Thursday, January 27, 2011, 4:48 PM

Steve Vladeck just sent in the following thoughts in response to my suggestion that habeas is not quite a right without a remedy:

Without getting too deeply into the back-and-forth between you, David, and Sabin over the “Embrac[e] Guantanamo” idea, it strikes me that your most recent post (“A Right Without a Remedy”), by focusing so much on the unique plight of the Uighurs, misses the broader legal contretemps in which Sabin and David (and, to a lesser extent, I) are so heavily invested.

Not counting the military commission litigation that will eventually end up in the D.C. Circuit (if the Court of Military Commission Review ever does anything), there are three distinct sets of Guantanamo cases: those in which the detainees have prevailed on the merits and are seeking to secure release into the United States (the Uighurs); those in which the detainees have prevailed on the merits and are seeking to block their release to a country in which they credibly fear mistreatment; and those in which the underlying issues go to the merits—where the D.C. district court or D.C. Circuit have held that, on the merits, a detainee is properly confined at Guantanamo.

Even bracketing the Uighurs for the moment (although the fact that it’s an exceptional case doesn’t mean it doesn’t count), part of the problem lies in the other two categories. With regard to the transfer/repatriation issue, if one takes the Suspension Clause seriously, and accepts that Boumediene demands its full application to the Guantanamo detainees, then there is something seriously troubling about Kiyemba IIand its follow-on cases, as Judge Griffith pointed out earlier this month in dissenting from the denial of rehearing en banc in Abdah. In English, being released to a country where one credibly fears torture or other forms of cruel, inhuman, or degrading treatment is little different from being released into the hands of a hungry mob—and is only a remedy in the most hypertechnical sense of the word. So you may count those cases as ones in which the petitioners received the remedy they were seeking; I—and, I very much suspect, they—don’t.

I also suspect that you don’t count the “merits” cases as examples of a right without a remedy because, if one assumes that the D.C. Circuit is deciding them all “correctly,” then that means none of the detainees who lose on the merits in the D.C. Circuit are entitled to any remedy, let alone the one being pursued by the Uighurs. Note, though, that such an assumption turns on the premise that the D.C. Circuit can do (or at least has done) no wrong—that the current state of the case law reflects what is, and should be, true as a matter of statutory, constitutional, and international law. Indeed, last week, when cert. was denied in Al-Adahi, you suggested that the “The Supreme Court’s unwillingness to hear the case suggests a comfort level with  letting the D.C. Circuit continue writing the rules of these habeas cases and a lack of interest in getting down and dirty with the nitty gritty of detention.” I’m not quite as convinced, especially given the recusals in all of these cases of Justice Kagan. Indeed, the more that the D.C. Circuit’s case law makes Guantanamo habeas resemble the CSRT process, the more that the detainees are being deprived of the right to a remedy identified in Boumediene, whether or not they should ultimately fall within the scope of the government’s detention authority.

Don’t get me wrong—I agree with the premise that most of the Guantanamo detainees who repaired to the federal courts have in fact been released, whether in light of a judicial order mandating as much, or in advance of one. I also agree that an executive order along the lines portrayed in the media would be a positive development relative to the status quo. But you look at the exceptional cases as proof of how well the system is working and can work in the typical case. I look at them and worry about the exceptions eventually swallowing the rules.