Of Justice Breyer, Uighurs, the Left, and Judge Silberman

The other day, I expressed bewilderment at the intellectual convergence between the political Left and Judge Laurence Silberman over whether post-Boumediene litigation has left habeas an empty shell. I've been mostly out of pocket for the last two days, but I wanted to highlight how Justice Breyer's statement in the Kiyemba cert denial this week once again repudiates the factual predicate for this strange intellectual marriage. Both Judge Silberman and the Left, albeit for very different reasons, regard the D.C. Circuit's Kiyemba decision as giving the lie to the promise of Boumediene. To the habeas bar and the Left, of course, this is a problem--a betrayal by the conservative lower court of the rights the high court recognized. In an editorial about Kiyemba, for example, the New York Times wails,

The United States Court of Appeals for the District of Columbia Circuit, the only circuit where detainees can challenge their detention, has dramatically restricted the Boumediene ruling. In its hands, habeas is no longer a remedy for the problem the Boumediene majority called “arbitrary and unlawful restraint.”

To Judge Silberman, by contrast, Kiyemba merely illustrates the frivolity and irresponsibility of Boumediene itself:

if it turns out that regardless of our decisions the executive branch does not release winning petitioners because no other country will accept them and they will not be released into the United States . . . then the whole process leads to virtual advisory opinions. It becomes a charade prompted by the Supreme Court’s defiant–if only theoretical–assertion of judicial supremacy, sustained by posturing on the part of the Justice Department, and providing litigation exercise for the detainee bar.

But the underlying point is the same: Boumediene promised more than the courts are now prepared to deliver and court orders to release detainees are thus not worth much. I am no fan of Boumediene, but for the reasons I have previously explained, I think this point is empirically incorrect--at least in the context in which the habeas bar, Judge Silberman, and the New York Times are all making it. As far as I'm concerned, the relevant facts are the following:

• The government acknowledges that final orders for release in habeas cases are binding upon it and endeavors to comply with them as a matter of legal obligation;
• There are no Guantanamo detainees who are being held despite final judicial orders to release them; and 
• The only exception to this is a non-exception--the five remaining Kiyemba Uighurs, who have declined those offers of resettlement the government managed to win for them. 

Justice Breyer's statement the other day puts four justices on the record as reading the matter my way. As he put it for himself and three colleagues:

In my view, these offers, the lack of any meaningful challenge as to their appropriateness, and the Government’s uncontested commitment to continue to work to resettle petitioners transform petitioners’ claim. Under present circumstances, I see no Government-imposed obstacle to petitioners’ timely release and appropriate resettlement. 

Somehow, I doubt this will put to rest the strangely powerful meme that habeas has been gutted, but it really should. And it is good that the justices, at least, are not jumping on this particular bandwagon.