Two and a half years after the Supreme Court gave detainees at Guantanamo Bay a constitutional right to challenge their captivity with habeas pleas  in U.S. courts, the pace in lower courts has been measured, and the record mixed — for both detainees and for the government.  Although detainees have won a clear majority of the habeas trials in the wake of Boumediene v. Bush, any actual release from captivity has come to depend almost entirely on what the Executive Branch is willing to do or able to arrange.  The government’s losses in District Court have been more than made up by its successes in appeals to the D.C. Circuit Court.

In recent weeks, the wave of post-Boumediene challenges to the results in the Circuit Court has been reaching the Supreme Court, with the first case scheduled to go to the Justices’ private Conference on Jan. 14.  So far, eight cases are pending on the Court’s docket, and more are on the way.   The pace of review appears to be quickening in the Circuit Court, setting the stage for further appeals to the Justices.

David Remes, who represents a number of Guantanamo detainees through his public interest law firm, Appeal for Justice, and who acts as a clearinghouse for data about the detainee cases, has compiled the record so far in a series of new tables.  They are linked in this post as Remes has prepared them.

Table 1 shows that, of 38 cases in which federal District judges have completed habeas trials, 29 detainees have been issued habeas writs.  All but five of the 29 have left Guantanamo, after releases to other countries were arranged through U.S. diplomatic efforts.  The five who remain at Guantanamo are members of a Chinese Muslim sect, who will not be returned to their home country because of concerns that they will be persecuted there, as members of the sect have been for some years. The government has said that the five have rejected two offers of resettlement.

While a total of 17 Uighurs were successful in District Court, the Justice Department successfully appealed an order that would have transferred them to live at least temporarily in the U.S.  The five who are still at Guantanamo are seeking, in their new petition (Kiyemba v. Obama, now known as “Kiyemba III,” docket 10-775) to test how much authority a federal judge retains to order and achieve actual release for a captive whom the government no longer insists on detaining but has not made arrangements for resettlement.

Table 1 alao shows the results of the nine cases in which the Justice Department has pursued appeals to the Circuit Court.  (All Guantanamo cases go through the District Courts in Washington, and the D.C. Circuit.)

Table 2 compiles the record of the 19 cases in which District judges have denied habeas writs, and what has happened to those cases in the Circuit Court.  Included among those cases are the ones that are now pending on cert petitions at the Supreme Court.

Table 3 lists the eight cases now pending at the Supreme Court, as well as two cases still at the Circuit Court but being held in abeyance until after the Justices act on one of the pending petitions.  This blog did a summation of those eight cases in this post.  Table 3 indicates when government responses are now due in each of the eight cases awaiting the Justices’ attention.

(The blog thanks David Remes for sharing the tables with our readers.)

Posted in Cases in the Pipeline, Detainee Litigation, Featured

Recommended Citation: Lyle Denniston, Boumediene: The record so far, SCOTUSblog (Jan. 2, 2011, 11:44 PM),