With All Deliberate Speed”: Rasul V. Bush, Ten Year Later

[Disir]

Ten years later, the remaining prisoners at Guantánamo—a hundred and forty-nine of them—may wonder what all the fuss was about. They obtained the theoretical right to seek judicial review, but in most cases that review has proved virtually meaningless. At first, the district courts ruled that many detainees were unlawfully detained. But the U.S. Court of Appeals for the D.C. Circuit, which had earlier denied the detainees any review at all, upheld the government in every appeal it filed. Moreover, the detainees themselves cannot see most of the evidence against them, and therefore often cannot participate meaningfully in their own defense. After a decade, not a single detainee has been released because of the government losing or exhausting its appeals. (The Administration chose not to appeal some release orders, but given its record in the court of appeals these releases were, for all practical purposes, voluntary.) The Supreme Court, meanwhile, has repeatedly declined to step in.

The Court addressed only the question of whether detainees could have a day in court, but it provided no guidance for how such judicial review should be exercised, or even what the government would have to show to justify continued detention. It rested its decision on statutory grounds, which prompted Congress to amend the law to deny judicial review. It was another four years before the Court invalidated that statute, and held, in Boumediene v. Bush, that judicial review was constitutionally compelled. Even then, it said nothing about what rights detainees might have once they got into court.

Thus, both in Brown and in Rasul, the Supreme Court issued a bold, landmark decision but failed to take the necessary steps to insure that reality conformed to its grand statements of legal principle. The Court was unable or unwilling to find a way to implement its vision. And, in both instances, real progress required engagement of the political branches.

....Seventy-eight of the men there, more than half of the total, have already been cleared for transfer to a foreign country. The Obama Administration can and should transfer them as soon as possible. The biggest challenge is Yemen, home for the bulk of the cleared detainees. That country’s precarious security situation has made the Administration and Congress nervous about the detainees’ return. But if we invest sufficient resources in buttressing Yemen’s ability to monitor these men, the number of Guantánamo detainees could be cut nearly in half. And should men cleared for release be detained indefinitely simply because their home country is unstable?

This is a very interesting little piece. What it does not acknowledge, but should have, is that half the battle is getting someone to take the detainees. Those that have been convicted should be serving their sentence in federal prisons.