Monday, March 01, 2010

The Right Decision

Deborah Pearlstein

Cross-posted at Opinio Juris

Earlier this term, the Supreme Court granted certiorari to decide the latest issue in the sad case of the Uighurs still held at Guantanamo Bay after having been cleared of “enemy combatant” status by both Bush and Obama Administrations. U.S. treaty obligations restricting the ‘refoulement’ of individuals to countries where they’re likely to face torture have effectively prevented the United States from sending the Uighurs , a persecuted Muslim minority in China, back to China. And while the Washington, D.C. federal district court ruled months ago that the Uighurs continued detention at Guantanamo was without legal authorization, the D.C. Circuit court rejected the notion that the remedy for unlawful detention at Guantanamo Bay was release into the United States. Under U.S. immigration law, the D.C. Circuit held, no court can compel the Executive to allow aliens entry into the United States. The Uighurs, languishing at the U.S. naval base in Guantanamo, Cuba, were thus without effective remedy under law. The Supreme Court granted cert to decide the question whether the federal courts were in fact without effective remedial power. With the case set for oral arguments later this month, the Court today ordered the D.C. Circuit decision vacated, and it remanded the case to the appeals court to determine whether additional proceedings were now “necessary and appropriate” in light of the Obama Administration’s recent success in finding foreign nations (Switzerland and Palau) to offer the Uighurs a place to live.

Under the circumstances, I tend to think the Court handled the matter just right. Despite the pending offers of resettlement, the Uighurs’ attorneys had pressed the Supreme Court to decide the case now. Among other things, the Uighurs offered resettlement in Palau – a country lacking a Muslim population to speak of – evidently view the island nation an unacceptable alternative to continued detention at Guantanamo Bay. And given a choice between Palau and, say, Florida, I might well favor Florida too. The problem is that the Uighurs had only a modest chance, at best, of securing resettlement in the United States even if the Court had kept the case. Indeed, given the uncertainty of the outcome before the Supreme Court, the possibility that the Court would keep the case – and decide it against the Uighurs who, after all, now have at least Palau – might have cemented a permanently bad outcome for the remaining Guantanamo detainees who have also been cleared for release but have yet to find a country offering resettlement. For now – particularly thanks to the Court’s decision to vacate the D.C. Circuit opinion below – the possibility remains even in the D.C. Circuit that the courts may not be without all effective remedial power in resolving (before a potentially different panel) the next case of a stateless Guantanamo detainee (which case is surely coming).

Finally, while the Uighurs’ case is perhaps the saddest of the many sad cases resulting from mistakes made at Guantanamo beginning in 2002, the Obama Administration deserves some credit for, so far, threading the needle to find the marginally more favorable of the few options remaining for resolving these cases. It is true that the options would not have been quite so narrow – now that Congress has prohibited the transfer of almost all Gitmo detainees to the United States – had the Administration been more politically astute at the outset in actively managing the closure of Guantanamo together with the members of Congress whose obstruction it needed to avoid. Nonetheless, recent diplomatic resettlement efforts have been markedly more successful than those pursued by the Bush Administration. And this Administration has managed, so far, to avoid both the conclusive cementing of rights-hostile judgments (like that of the D.C. Circuit in the Uighurs’ case), and the repeated rebukes the previous executive faced at the hands of the highly active Supreme Court.

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