"Our system of checks and balances is designed to preserve the fundamental right of liberty": An Update on the Gitmo Habeas Petitioners

I previously noted D. C. district court judge Ricardo Urbina's decision ordering the government to release 17 Guantanamo detainees. As of yesterday, only the order was available. This morning, though, the full text (though redacted some) of the memorandum opinion was posted on the D.C. district court's website.

It's a pretty interesting read. Because the government admits that these 17 men were not terrorists or "enemy combatants," the only issue was whether the government has the authority to indefinitely detain someone because releasing them into the United States might interfere with the government's authority to decide who gets to come into the U.S. and who doesn't.

It looks like the government's argument was based separation of powers---essentially an assertion that admitting somebody into the U.S. is only a policy decision, not a legal decision, and that it therefore is entirely the decision of Congress and the President, and that the courts have nothing to do with it. This is a bold assertion, but there is some support for it. Courts generally do defer to the other branches of government on matters of immigration and foreign policy.

Judge Urbina recognizes this, and he discusses the cases that give such wide deference. Nevertheless, from the opening line, you know where stands:

"There comes a time when delayed action prompted by judicial deference to the executive branch's function yields inaction not consistent with the constitutional imperative."

And by the end of the introduction, you know where he's going with this:

"because separation-of-powers concerns do not trump the very principal upon which this nation was founded---the unalienable right to liberty---the court orders the government to release the petitioners into the United States."

The big deal in this case is not the Judge Urbina found the continued detention unlawful---that follows pretty logically from the Supreme Court's Boumediene decision, and is even more obvious when the government admits that the 17 Uyghurs are not enemy combatants. What is bold about Judge Urbina's order is that it finds that the court has the authority to order immediate release. Although in Boumediene the court found that Gitmo detainees have the right to file a habeas corpus petition, it basically only treated it as a procedural right. The fact that the district court ordered immediate release into the U.S. goes beyond procedure straight to the remedy that should be given to a successful habeas petitioner. As a matter of common sense, it seems like it ought to be a no-brainer that the remedy for illegal detention is release; but the Boumediene didn't explicitly go that far.

Instead, Judge Urbina turned to the history of the writ of habeas corpus, which makes for the interesting read. It isn't every day that you see a district court opinion quoting the Magna Carta. He then turned to the government's authority to deny people entrance into the U.S. and concluded that naturalization power is not unlimited, but that it must comply with due process, including the mandate that nobody can be deprived of liberty without due process. Finally, quoting John Marshall, he turned the separation-of-powers argument on its head, noting that if the courts fail to review such decisions, such failure would allow Congress and the President, not the courts, to "say what the law is." Accordingly, he concludes that

"Because the petitioners' detention has already crossed the constitutional threshhold into infinitum and because our system of checks and balances is designed to preserve the fundamental right of liberty, the court grants the petitioners' motion for release into the United States."

Ballsy.