Saturday, February 21, 2009

Kiyemba v. Obama: An Argument against Formalism?

One of this week's headlining news items? The legal limbo of 17 Chinese ex-detainees at Guantanamo. Their situation seems straightforward enough: taking advantage of their right to petition for habeas relief, the Chinese 17 filed for release from the now infamous detention facility--and won! Case closed, right? Freedom at last!

Well, not quite.

Their dilemma is thus. Although American control over Guantanamo Bay avails its population to some Constitutional protections--like habeas corpus--it comes up short of constituting American "sovereignty," or so the Circuit Court of Appeals for DC found. The practical result is that detainees, once released, have only so much access to life in American territory as an alien seeking admission (rather than an alien fighting deportation). Their feet may meet "American" soil only at the unrestrained pleasure of the Executive, notwithstanding any otherwise dispositive factors considered in deportation hearings (displacement, statelessness, alternatives, etc.)

Normally, no problem. But in the case of the Chinese 17, America is internationally bound by a countervailing commitment--i.e., not to repatriate these persons for likelihood of their political persecution in their nation of origin.

Admitting the ex-detainees is not going to happen--it's a political hot potato. Deporting them is not going to happen--doing so would violate the 1967 Protocol (incorporating most of the 1951 Convention relating to the Status of Refugees). So what about that habeas victory? Well, seeing as how the Chinese 17 remain held indefinitely at Guantanamo lacking any other recourse, it seems their hard-fought habeas writ isn't worth the paper conveying it.

However, this unsettling outcome wasn't necessarily foreordained. Few concepts in international scholarship are as unfixed and ever-evolving as "sovereignty." Precedent and treaty language--characterising Guantanamo Bay as being beyond ours--shouldn't have been given peremptory weight. Indeed, even the most formalistic definition of "sovereignty" would be remiss to disregard the term's practical component. But given the unusually wide gulf between the word's legal function and legal use, the approach favouring the latter over the former is particularly hazardous. As long used, "sovereignty" has served to recognize realities rather than create them. To confer upon a descriptive word prescriptive power is to threaten the type of absurd results Kiyemba illustrates.