In the wake of Boumediene

A piece by Robert Barnes in the Wash. Post makes it sound as if the Supreme Court's June 2008 decision in Boumediene v. Bush, which held that Guantanamo Bay detainees could challenge their detentions via writs of habeas corpus in federal court, has not had much of a practical effect. Barnes writes that the U.S. Court of Appeals for the D.C. Circuit, which had to work out the details of what rules would apply to detention hearings, has issued "a string of rulings" against the detainees which the Supreme Court has declined to review. "The bottom line," according to Barnes, "is that while Guatanamo's population has declined from around 270 at the time of the decision to 172 today because of decisions of the executive branch, not a single release has come as the direct result of a judicial order."

This statement, if one emphasizes the word "direct," may be technically correct, but it does not capture the story of what happened with the named plaintiffs in Boumediene, a story I found when a search on "Boumediene v. Bush" turned up the site of WilmerHale, the law firm which handled the case for the plaintiffs on a pro bono basis.

WilmerHale's post reminds those who had forgotten the facts (or never been too clear on them, such as myself) that the plaintiffs were six Algerians living in Bosnia who were transported to Gitmo by the U.S. government in 2002 and held there for more than five years before the Supreme Court's 2008 decision. The U.S. claimed among other things that they had been planning to attack the American embassy in Sarajevo. I pick up the story from the law firm's post:

In October 2008, WilmerHale filed the first-ever evidentiary response ("traverse") on behalf of Guantanamo prisoners, refuting the Government's asserted grounds for detention...

As a result of WilmerHale’s challenge, the US Government dropped its most inflammatory claim against the men, namely that they were planning to attack the US Embassy in Sarajevo in 2001. The US Government abandoned this claim even though President Bush had specifically mentioned it in the 2002 State of the Union address.

In November 2008, Judge Richard J. Leon of the US District Court in Washington DC held a seven-day hearing into the Government’s allegations. It was the first merits hearing in a habeas case involving Guantanamo prisoners. The hearing also included another first-time event: testimony by Guantanamo prisoners, live via videolink from Cuba, in support of their own bid for release.

On November 20, 2008, Judge Leon ruled that the Government had failed to show any credible evidence justifying detention of five of the six men. Judge Leon also took the extraordinary step of imploring the Government not to appeal that ruling. Judge Leon ruled against the sixth Petitioner, Belkacem Bensayah.

In December 2008, the Government informed WilmerHale that it would, indeed, forgo any appeal and abide by the ruling as to the five successful Petitioners. On December 16, 2008, three of WilmerHale’s clients—Mustafa Ait Idir, Hadj Boudella, and Mohamed Nechla—arrived safely home in Sarajevo, Bosnia, where they were met by elated family members and friends. This was the first time that the US Government has released Guantanamo prisoners in response to a court order. The remaining two successful petitioners, Lakhdar Boumediene and Saber Lahmar, were released and transferred to France in 2009.

WilmerHale appealed Judge Leon's denial of Belkacem Bensayah's habeas corpus petition to the US Court of Appeals for the District of Columbia... On June 28, 2010, the DC Circuit panel unanimously reversed and remanded Judge Leon's ruling, holding that the government's evidence was insufficient to demonstrate that Mr. Bensayah was detainable. This marks the first (and so far only) case in which the DC Circuit has reversed a district court's denial of habeas corpus to a Guantanamo prisoner.

So although Barnes's article is no doubt correct that the practical impact of the Boumediene decision has been much less than proponents had hoped, at least in the case of the original plaintiffs the decision did make a difference: the five who were released (the three who returned to Bosnia and the two who went to France) were set free in response to a court order, as the law firm's post says.

Why hasn't Boumediene benefited more detainees? The Barnes piece suggests that the U.S. Court of Appeals for the D.C. Circuit has weakened, if not undermined, the decision (he quotes the Center for Constitutional Rights as saying the D.C. Circuit has "openly defied" Boumediene). That is probably part of the reason; another may be that most detainees, unlike the Boumediene plaintiffs, have not been lucky enough to receive the skilled pro bono services of a big, very well-resourced law firm like WilmerHale. (This is not in any way to cast aspersions on the various lawyers who represent detainees, merely to note that resources can make a difference.)

P.s. Looking back at a post I wrote when Boumediene was decided, I see that Roberts in his dissent said the decision would have only a "modest practical impact," whereas Scalia in his dissent said it would have far-reaching and "disastrous" consequences. On this point, score Roberts one, Scalia zero. (But note that two commenters on my June 2008 post thought Scalia and Roberts were talking about different things, not making different predictions about the same thing. Whatever.)