I agree with my colleague Richard Murphy (
here) that for Guantánamo detainees, seeking habeas relief has proven to be an exercise in futility. The D.C. Circuit appears to be dead-set against letting them prevail. It has not affirmed a grant in any habeas case, and it has remanded any denial that it did not affirm.
Moreover, the Supreme Court, having declared in Boumediene that detainees have a constitutional right to seek habeas relief, appears to have washed its hands of the matter. It denied review in every case brought to it by detainees this Term, including one, Kiyemba III, which eliminated the habeas remedy itself.
The D.C. Circuit has decided twelve habeas appeals on the merits. In four, the detainee prevailed in the district court; in eight, the government prevailed. The D.C. Circuit erased all four detainee wins. It reversed two outright (Adahi, Uthman) and remanded the other two (Salahi, Hatim). By contrast, the court affirmed six of the eight government wins (al-Bihani, Awad, Barhoumi, al Odah, Esmail, Madhwani), remanding the other two (Bensayah, Warafi).
In two critical non-merits cases, the D.C. Circuit held in Kiyemba I and III that the district court cannot compel the government to release a detainee found to be unlawfully held; and in Kiyemba II, the court effectively barred the district court from enjoining the release of a detainee to a country where he fears he will be tortured. Because the Supreme Court denied review in both cases, only Congress can overrule them. Unless Congress removes from the Executive the discretion to decide whether to release a prevailing detainee, I don’t see what practical difference legislation making substantive or procedural improvements in Guantánamo habeas litigation can make.