More at Stake in Gitmo Court Orders Than Detainees’ Fates

What is the meaning of the constitutional right of habeas corpus in the new and potentially expanding context of terrorism detention?

| August 2009

The federal judges who are reviewing lawsuits [1] filed by Guantanamo inmates have found that 29 of the 35 men whose cases they’ve completed have been unlawfully detained. For ordinary convicted criminals, that would mean that the authorities who imprisoned them would have to let them go. But the jailer at Guantanamo – the executive branch – is still holding 20 detainees the judges have cleared for release.

The impasse over releasing these prisoners is usually discussed as a logistical problem of foreign diplomacy or domestic politics. But it also raises a deeper question of principle: What is the meaning of the constitutional right of habeas corpus – a core American right to be free from unjust imprisonment – in the new and potentially expanding context of terrorism detention?

The right appears in the original text of the Constitution and is meant to protect the liberty of individuals even when it’s politically unpopular. That protection comes from the federal courts, where judges are not elected but rather are kept independent of popular sentiment by lifetime appointments. Habeas petitions are most commonly filed by prisoners claiming errors in their convictions due to faulty forensic evidence, prosecutorial misconduct or other wrongs.

The traditional remedy to wrongful imprisonment is release. But in the case of the Guantanamo prisoners, the shape of justice has been much fuzzier. In June 2008, the Supreme Court said the detainees have the right to sue for their freedom via habeas petitions, ending years of litigation by the Bush administration to try to block them. But a February ruling by the federal appeals court in Washington – sought by the Bush administration and embraced by the Obama administration – declared that, while Guantanamo detainees have the right to sue and have their imprisonment found illegal, they don’t have a right to actual release.

The appeals court wasn’t moved by the fact that these foreigners had been taken against their will and erroneously placed under U.S. jurisdiction – a finding that trial judges have made in the overwhelming majority of cases so far. Instead, the court likened the captives’ predicament to that of undocumented immigrants who are caught, saying the president has wide discretion to detain people who for political reasons are difficult to send elsewhere.

Since the February decision, trial judges who’ve rejected the government’s evidence as too flimsy have been barred from ordering the president actually to release detainees. Now the judges resort to a vaguer admonition that the executive branch "take steps" toward releasing them.

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