House GOP to Supreme Court: Bring Gitmo Detainees Here

Yesterday, I drew attention to the mindless House amendment designed to zero out funding for State Department efforts to resettle Guantanamo detainees. I have  a proposed name for this amendment: The Let's Taunt the Supreme Court of the United States into Granting Cert in a Gitmo Case Act (or the Taunt Act for short). Consider the lay of the legal land now and under the proposed Taunt Act. Currently, there are a group of detainees at Guantanamo challenging their detentions. Early on, a fair number of them were winning their cases (though that has shifted hard over the past year). When a detainee wins, the habeas court orders his release, which requires a measure of diplomatic negotiation to effectuate. Sometimes, this is relatively easy, as when the detainee is a from a country to whom he can be easily returned and which has no ambitions to torture him. Sometimes, however, it's rather difficult. The detainee's home country would like to, say, separate him from his fingernails, and other countries are, curiously enough, not lining up to house someone whom the United States will not put in Cleveland or Washington DC and has long maintained is a serious bad guy but whom we are now under court order to release. Both situations take diplomacy. The latter situation takes a lot of diplomacy. It also takes a lot of litigation. Lawyers for such detainees quite understandably want their release orders effectuated. And they take the position that if the government can't release their clients somewhere other than the United States, the courts should force them to bring them here--something Congress has forbidden. The government, in turn, argues that it is making great efforts to resettle these people. Indeed, it has a whole office in the State Department devoted to the project of garnering other countries' help in resettling Guantanamo detainees--one that has had considerable success in getting people out of Guantanamo. The courts, it argues, should thus give it some latitude. So far, the Supreme Court has bought this and thought better of its one effort to intervene. It did so explicitly on the basis of the success of State Department resettlement efforts in winning release opportunities for those ordered freed:

By  now,  however,  each  of  the detainees at issue in this case has received at least one offer of resettlement in another  country.  Most of the detainees  have accepted an offer of resettlement; five detainees, however, have rejected two such offers and are still being held at Guantanamo Bay.

This change in the underlying facts may affect the legal issues presented.  No  court has yet ruled in  this case in light of the new facts, and we decline to be the first to do so.

Now imagine the lay of the land under the Taunt Act. Some habeas judge in some case will grant the writ--ordering a detainee freed. The State Department will have no infrastructure to negotiate his repatriation. Perhaps if it's an easy case, the department will arrange repatriation without a special office. If it's a hard case, however, it will have no one to fly around the world, hat in hand, looking for resettlement opportunities. What's more, the Justice Department will not be able earnestly to tell the courts that the administration is beating the pavement trying to find a place for this person. It will, rather, have to file some lame brief saying that it will resettle him in the due course of time when events in the world change, and won't the court please forbear as U.S. forces hold onto him until then. Under the Taunt Act, the Supreme Court will grant cert and fast. And I doubt very much that it will hold that no court has any power to order someone brought to the United States to be released when that person has been ordered freed by a habeas and when Congress has specifically disallowed the executive branch to spend money negotiating his freedom anywhere else. Even I wouldn't support such a holding. If habeas has any meaning, surely it means that Congress cannot refuse as a matter of policy either to release detainees ordered freed into the United States or to release them outside the United States. So here's my suggestion to President Obama as to how to deal with Rep. Steve Scalise, proud author of the Taunt Act: The administration, in addition to promising a veto of any bill containing the Taunt Act, should make clear that any and all Guantanamo detainees ordered into the United States as a consequence of this reckless piece of legislation will be resettled in the First District of Louisiana--and it should procure living facilities in Rep. Scalise's immediate neighborhood to house such people.