Sabin Willett on the Kiyemba Cert Denial

Requiem for a Remedy

On Monday I was thinking about the greatest enemy combatant of them all, whose last campaign, like ours, ended in April.  He did more harm to the U.S. Army than any combatant before or since, and then, unlike the Uighurs, retired to Virginia.  On Monday I thought about the respectful silence given to General Lee, when it had finally ended for him, and the Federals lined the little lane running from Wilmer McLean’s house at Appomattox, and his men began the long walk home.

The reverie lasted until I remembered: they went home. Three years ago, Boumediene came down like a lion at the end of the term.  Great, but short-lived, was the joy in our camp, for the D.C. Circuit soon outflanked its master. It out-hustled the High Court and picked its decision apart, skirmish by skirmish.  Some thought the conceit extravagant when our brief called Boumediene a trophy hanging in the library, impressive but lifeless.  I wonder, now, if we understated things. But the beaten combatant had better begin by confessing a sneaking regard for the resourcefulness of his opponent.  Not for his view of law or liberty, or the Writ, or the War Power, but for his implacable determination, the dogged, tireless ingenuity of his campaign.  There were many judges, but never could the "detainee bar," as Judge Silberman calls us, escape the immanence of Judge Randolph.  He was everywhere.  Take the Justice Department from top to bottom and end to end -- line up every true believer with a Federalist Society membership and a Phi Beta Kappa key.  Throw in that misery, John Yoo, and his amen chorus for good measure.  Stand them shoulder to shoulder, and the file wouldn’t equal Judge A. Raymond Randolph’s line -- of one. Was there ever such a campaign?  Implied revocation of acts of Congress (Basardh), a brand-new standard of appellate review crafted to dispatch credibility determinations (Adahi), and as the sun went down, the spiking of the court’s own guns in Kiyemba. Meanwhile, the government like an anxious privy counselor scurried to soothe the Nine, intoning, "The writ of habeas corpus is effective at Guantanamo Bay, the writ of habeas corpus is effective at Guantanamo Bay."  Maybe they believe it up there at the Supreme Court, but today the only thing actually effective at Guantanamo Bay is politics.  Kiyemba decrees that when the courts finally declare a man a noncombatant, the Executive will dutifully carry out politics, domestic and international, including the politics it wanted to carry out in the first place.  They can call this the Writ, but Posterity will not be fooled.  The Writ cared not a whit for politics.  It was stone to discretion, and it dragged the Executive kicking and screaming to compliance.  That hasn't happened.  After Kiyemba it cannot happen.  Judge Silberman was right about that, and the Department of Justice need no longer be coy about it. Not that too many -- or should I say, any -- men can hold a win in the D.C. Circuit these days.  The narrow Article I idea of the precise military enemy identified in a war authorization has been broadened (in utterly unnecessary dictum) to the mythic (Bihani).  Any combination of circumstances will be reshuffled to “condition” the probability (Adahi), candor compels at least one judge to admit that the real detention standard is, “He might be -- you never know.” (Esmail).  A district judge would be daft to essay what used to be her most sacred task -- assessing witness credibility.  She’ll either be trumped by a statistician (Adahi), or pronounced a gull for $4 bills (Esmail).  In the rush to sweep the field of detainee cases, not even the honor of U.S. servicemen was safe.  To kill off one case, the D.C. Circuit ruled that it is foreseeable that our troops will torture a prisoner (Rasul). (Call me a “Detainee lawyer” if you will, but I will denounce that last decision until the day I die.) In the end it wasn’t about enemies at all.  For it was the Uighurs, of all people, upon whom the court house door at last was shut.  With so much talk of Palau, people forget that when Judge Urbina ruled -- when the stay entered, when Kiyemba I was decided -- there was no Palau.  And that decision is reinstated.  So the options are irrelevant.  No judge can order release in any place where his orders have effect.  Whatever his view of the law of war, a reader of this blog must wince, a little, at the idea that the judicial power consists of being reassured by the jailer that the jailer will attend to his own unlawful act -- at the idea that what controls a judicial remedy is not law, but the politics of Yemen, of Bermuda, of Obamacare, of the New Hampshire Primary.  The court can do no more than accept the President’s representation that he is attempting to arrange an “appropriate” resettlement.  Imagine that representation from, say, President Trump.  Will we call that a judicial remedy? I’m from Massachusetts.  I’ve been a guest of the D.C. Circuit.  As an outsider, it always seemed to me that the special culture of scholarship down there might also be the court’s Achilles’ heel.  Every judge has a gold-plated resume, ran the law review and clerked for at least a middling deity.  In such heady company, one might forget that judicial review is not about brilliant opinions.  Remedy is the guts of the judicial power.  The rest is book reports. It’s about an order unique and narrow -- and prompt, arising from a peculiar case or controversy, confined to a unique litigant, heedless of political temperature, mindful of law and fact, bearing true faith to a right mortared into the First Article, calling the government to account, with the body of the prisoner there present.  Bring Hamdi to my courtroom, ordered Judge Doumar, and we will sort this out.  And it was sorted out.  That was habeas, by God!  Bring the Uighurs to my court room, said that wise and careful judge, Ricardo Urbina.  That was habeas, too -- for a few hours, until the Circuit issued a stay. After Kiyemba, a man comes or goes by executive discretion, which is exactly where we were when this all began.  Most who read this blog will think that a good thing, and this particular moment – which finds me trudging down the melancholy lane, nursing wounds, out of sorts with the world – is not the moment to debate them.  Whether the genius of our Republic lies in political judgments about collective security, or whether it lies in the liberty of a fellow creature of God cannot be resolved today.  But regardless of whether it was wise or foolish to have come this journey, we have returned to a world that is exclusively political.  What now? The irony that governments understand is that as time passes, injustice grows more tolerable, not less.  So why prosecute anyone now?  Life imprisonment is available for the asking.  Prosecute the prisoner and you risk acquittal, or perhaps worse: you risk a sentence of time served, and a convicted terrorist (at least, by commission) going home, while the Uighurs remain. Next month, Hammad, Khalid, Sab’r, Abdulrazak, and apple-cheeked Abdulsabour will begin their tenth year as America’s prisoners: your prisoners, my prisoners.  They were our prisoners for seven years because we were said to be looking for a Palau, and that was good enough then.  They have been our prisoner for two more because they declined Palau, and that is good enough now.  Six years on from their habeas petition, the Uighurs' judicial campaign came to its end with a cert. denied, and a "statement."  They didn't take Palau, and that is the end of the matter.  Never mind those other years. The moral question may have been irrelevant in the court room, but the odd consequence of Kiyemba is that now it is the only relevant thing left.  Why are we Americans untroubled by a dilemma that we made?  Why do our political branches shirk responsibility? Four of our Uighur clients might have found freedom here in 2009 (and I rather think that if they had, once the shouting died down, the whole business of shuttering the prison would have become infinitely easier), but hysteria was whipped to a froth in the Old Dominion, and the President flinched.  When they went to Bermuda, a zealot emailed to say that they and I would have blood on our hands.  Two years later, their hands are only callused (they work construction).  They buckle their helmets and ride their scooters on the South Road to Paget Parish.  They send me texts.  One lives with his wife and expects a child; the others dream of wives and children.  Bermuda seems to have survived.  Why aren’t we shamed by this? Their five old friends did not go to Camp Iguana to steal a march upon U.S. citizenship.  We brought them.  They asked not for asylum, but for freedom in the only place where the judicial power could grant it.  Why that plea carried no urgency when there was no Palau, and why their choices should now be between prison and another deep blue sea has never been explained to their satisfaction, nor mine.  I can parse the legal argument, but I’ve never understood the moral one. But leave the Uighurs.  With Kiyemba’s remedy strip the law for all, what, in year ten, shall we do with the cook, the wedding guest, the fellow traveler, the foolish youth who so many years ago wandered into a training camp, and wandered out again?  Shall he terrify us forever?  What shall we do with the Afghan who signed up with the wrong faction in the chaos of 2001?  Shall he be our prisoner long after bin Laden’s driver is home?  Until the Emperor of Terror comes aboard the Missouri, to sign the instrument of unconditional surrender in our war against a common noun? In my city in 1942, we imprisoned Mr. Mussolini’s fierce combatants.  But within two years we were inviting them to Mass in the North End, and young girls were passing notes through the fence at Carson’s Beach.  We Americans held U-boat drivers in York County, Virginia, Japanese sailors in Wisconsin.  As for the Nazi officers at the Hearne Camp in Texas, when they were on work release harvesting cotton, they weren’t imprisoned at all.  We held the enemy on our own soil in those days.  In Texas, he worked the soil.  Today, our soil fears men who never were our enemies at all. Can it really be that the frequenter-of-a-suspicious-guest-house is more fearsome than those POWs of yesterday, whom we held in camps all across America?  That the Uighur is?  What shall we say when the Guantanamo prisoner’s fifteenth year comes?  His twenty-fifth?  When a prisoner dies of old age, as Awal Gul did last February?  Sooner than you think, a new MP will arrive for duty at the base, to guard a man who has been at Guantanamo since before that MP was born.  (That MP is in the Boy Scouts today, but he’ll be eighteen in a few years.)  What possible national interest will be served by that ironic custody? While it was here, habeas might have helped us resolve these questions.  Now that it is gone, only politics will.  So I trudge the lane this gloomy April, of a melancholy disposition. In Dido’s cave, a stunned Aeneas comes upon a mural depicting his own ten-years’ war.  ‘There is a heartbreak at the heart of things,’ is the only explanation Virgil can offer.  He was right. Some of my colleagues are unbroken.  Stout-hearted all, they still are in the fray.  God bless them!  Perhaps, undaunted, they will tease a distinction from a different set of facts, perhaps they will find that key to the D.C. Circuit that we briefly held in Parhat, and never touched again.  Maybe someone can at least bring a case from which Justice Kagan is not recused.  I hope they do. As for the Uighurs, I fear this will not end well.  I used to say, half in jest, that a Uighur would turn out the lights at Guantanamo Bay.  How will Guantanamo end?  Not with Eliot’s bang, nor even with his whimper.  Our government seems determined that it shall not end at all. Sabin Willett April, 2011