Habeas Numbers and a Correction (of the Washington Post)

The recent decision from the D.C. Circuit (the Esmail affirmance), and Supreme Court's recent cert. denials in several cases, warrant an update to our habeas numbers. Before we get to that, however, it seemed appropriate to correct a misstatement in a recent Washington Post article about the Guantanamo habeas litigation. Robert Barnes's article from this past Sunday, which quotes Bobby regarding the importance of the Supreme Court's 2008 Boumediene decision generally, significantly misstates a detail about the number of releases that have come in response to judicial orders. The Post reports that:

Although delivered in broad strokes and powerful language, the ruling left the details of how to provide hearings for the detainees up to the (not entirely grateful) judges of the D.C. Circuit. The bottom line is that while Guantanamo’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 is incorrect. One can, of course, quibble about the meaning of "direct result of a judicial order." But there is no doubt that numerous detainees were released from Guantanamo because the government found itself obliged to implement a court order granting a writ of habeas corpus. As we count, that number is 26. This includes 12 of the 17 Uighurs, the remaining 5 of whom are embroiled in a dispute with the government about which country they will be transferred to. It also includes 14 other former detainees who won their cases in the district court and whose wins the government either did not seek to appeal or regarding which the government initially filed an appeal, but later dropped it. Consider, for example, is Khalid Abdullah Mishal Al Mutairi, the detainee whose petition Judge Colleen Kollar-Kotelly granted in 2009. The government not only did not appeal Al Mutairi's case, but it also, by its own assertion, transferred Al Mutairi to Kuwait as a direct result of Judge Kollar-Kotelly's opinion. Now, the updated numbers:

-       Uighur cases in which detention was deemed or conceded unlawful: 17

-       Petitioners’ district-court wins pending at D.C. Circuit: 3

-       Petitioners’ district-court wins not appealed by the government or cases in which the government’s initial appeal was later dismissed: 14

-       Petitioners’ district-court wins resulting in a remand by the D.C. Circuit to district court, with remand pending: 2

-       Petitioners’ merits wins at D.C. Circuit: 0

-       Government’s district-court wins not appealed by the petitioner, including cases in which the petitioner’s initial appeal was later dismissed: 2

-       Government’s district-court wins that will likely be appealed: 2

-       Government’s district-court wins pending at D.C. Circuit: 9

-       Government’s district-court wins resulting in a remand by the D.C. Circuit to district court, with remand pending: 2

-       Government’s merits wins at D.C. Circuit: 8

-       Post-Boumediene merits decisions in which cert. has been denied: 4