Advancing a Free Society

A Right Without a Remedy?

Friday, January 28, 2011

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.

Continue reading Benjamin Wittes at Lawfare