{"id":376425,"date":"2010-03-01T14:59:23","date_gmt":"2010-03-01T19:59:23","guid":{"rendered":"http:\/\/opiniojuris.org\/2010\/03\/01\/the-right-decision\/"},"modified":"2010-03-01T14:59:23","modified_gmt":"2010-03-01T19:59:23","slug":"the-right-decision","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/376425","title":{"rendered":"The Right Decision"},"content":{"rendered":"

by Deborah Pearlstein <\/em><\/strong><\/p>\n

Cross-posted at Balkinization<\/em><\/a><\/p>\n

Earlier this term, the Supreme Court granted certiorari to decide the latest issue in the sad case of the Uighurs still held at Guantanamo Bay after having been cleared of \u201cenemy combatant\u201d status by both Bush and Obama Administrations. U.S. treaty obligations restricting the \u2018refoulement\u2019 of individuals to countries where they\u2019re likely to face torture have effectively prevented the United States from sending the Uighurs , a persecuted Muslim minority in China, back to China. And while the Washington, D.C. federal district court ruled months ago that the Uighurs continued detention at Guantanamo was without legal authorization, the D.C. Circuit court rejected the notion that the remedy for unlawful detention at Guantanamo Bay was release into the United States. Under U.S. immigration law, the D.C. Circuit held, no court can compel the Executive to allow aliens entry into the United States. The Uighurs, languishing at the U.S. naval base in Guantanamo, Cuba, were thus without effective remedy under law. The Supreme Court granted cert to decide the question whether the federal courts were in fact without effective remedial power. With the case set for oral arguments later this month, the Court today ordered <\/a>the D.C. Circuit decision vacated, and it remanded the case to the appeals court to determine whether additional proceedings were now \u201cnecessary and appropriate\u201d in light of the Obama Administration\u2019s recent success in finding foreign nations (Switzerland and Palau) to offer the Uighurs a place to live. <\/p>\n

Under the circumstances, I tend to think the Court did the right thing. Despite the pending offers of resettlement, the Uighurs\u2019 attorneys had pressed the Supreme Court to decide the case now. Among other things, the Uighurs offered resettlement in Palau \u2013 a country lacking a Muslim population to speak of \u2013 evidently view the island nation an unacceptable alternative to continued detention at Guantanamo Bay. And given a choice between Palau and, say, Florida, I might well favor Florida too. The problem is that the Uighurs had only a modest chance, at best, of securing resettlement in the United States even if the Court had kept the case. Indeed, given the uncertainty of the outcome before the Supreme Court, the possibility that the Court would keep the case \u2013 and decide it against the Uighurs who, after all, now have at least Palau \u2013 might have cemented a permanently bad outcome for the remaining Guantanamo detainees who have also been cleared for release but have yet to find a country offering resettlement. For now \u2013 particularly thanks to the Court\u2019s decision to vacate the D.C. Circuit opinion below \u2013 the possibility remains even in the D.C. Circuit that the courts may not be without all effective remedial power in resolving (before a potentially different panel) the next case of a stateless Guantanamo detainee (which case is surely coming). <\/p>\n

Finally, while the Uighurs\u2019 case is perhaps the saddest of the many sad cases resulting from mistakes made at Guantanamo beginning in 2002, the Obama Administration deserves some credit for, so far, threading the needle to find the marginally more favorable of the few options remaining for resolving these cases. It is true that the options would not have been quite so narrow \u2013 now that Congress has prohibited the transfer of almost all Gitmo detainees to the United States \u2013 had the Administration been more politically astute at the outset in actively managing the closure of Guantanamo together with the members of Congress whose obstruction it needed to avoid. Nonetheless, recent diplomatic resettlement efforts have been markedly more successful than those pursued by the Bush Administration. And this Administration has managed, so far, to avoid both the conclusive cementing of rights-hostile judgments (like that of the D.C. Circuit in the Uighurs\u2019 case), and the repeated rebukes the previous executive faced at the hands of the highly active Supreme Court.<\/p>\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

by Deborah Pearlstein Cross-posted at Balkinization Earlier this term, the Supreme Court granted certiorari to decide the latest issue in the sad case of the Uighurs still held at Guantanamo Bay after having been cleared of \u201cenemy combatant\u201d status by both Bush and Obama Administrations. U.S. treaty obligations restricting the \u2018refoulement\u2019 of individuals to countries […]<\/p>\n","protected":false},"author":4905,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-376425","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/376425","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/users\/4905"}],"replies":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/comments?post=376425"}],"version-history":[{"count":0,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/376425\/revisions"}],"wp:attachment":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/media?parent=376425"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/categories?post=376425"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/tags?post=376425"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}