Supreme Court Declines to Hear Guantanamo Bay Prisoner Appeals

Jun 13, 2012

By Kristen Friend, staff writer – June 13, 2012.

The Supreme Court denied review of seven petitions brought by Guantánamo Bay prisoners challenging their indefinite detention at the U.S. military facility in Cuba. The Court’s refusal to consider the cases came just before the fourth anniversary of the landmark case that granted detainees the right to challenge their confinement in civilian court.

The Court declined to hear the cases without comment, allowing decisions of the U.S. Court of Appeals for the D.C. Circuit to stand in seven separate cases. The D.C. Circuit Court is charged with hearing Guantánamo detainee cases and has to date ruled against all prisoners petitioning for release. [1] Human rights advocates are concerned that the string of anti-inmate rulings will lead to a serious weakening of the ability of prisoners to meaningfully challenge their detentions.

The Supreme Court’s non-action has no precedential weight, but it signals a continued reluctance to intervene in the lower courts’ handling of Guantánamo Bay cases. The Court’s unwillingness to evaluate appellate court findings may ultimately undermine one of its own decisions.

Tuesday marked the fourth anniversary of the Supreme Court’s decision in Boumediene v. Bush, a historic and controversial case that gave Guantánamo prisoners the right to challenge their detentions in federal court. According to Boumediene, detainees have the right to file habeas corpus petitions outside of the military court system challenging the legitimacy of their imprisonment. [2]

Habeas corpus allows prisoners to petition for their own release on the grounds that they are being illegally held. If a writ of habeas corpus is granted, the prisoner in question must be brought before a court to determine whether he or she should be freed.

The Boumediene decision came in response to a suit brought by the Center for Constitutional Rights, which argued that certain provisions of the 2006 Military Commissions Act (MCA) were unconstitutional. The MCA expressly eliminated habeas review for all “enemy combatants” held by the U.S. military. In Boumediene, however, the Supreme Court found that even non-citizen prisoners held at a facility not technically on U.S. soil were still constitutionally entitled to a “meaningful review” of the legality of their detention. [3]

Justice Kennedy, writing for the majority, said that habeas corpus existed as an important, fundamental challenge to executive power and that it was the job of the courts to check overreaches of power by both the executive and legislative branches. The government must be required to present evidence validating its reasons for holding any individual indefinitely without charges. [4]

While the ruling defined a clear right for Guantánamo detainees, it left the process of how the cases should be handled largely up to lower courts. Detainee rights advocates were hopeful that the decision would lead to the release of some individuals who were being held indefinitely in what could arguably be called a legal black hole.

But since the decision the circuit court has established a standard of review that largely favors government evidence. And the court continues to make it more difficult for detainees to win, while conveying thinly veiled contempt for the Supreme Court’s reasoning.

Some members of the D.C. court have openly expressed disdain for the decision. In a recent opinion, Circuit Judge Janice Rogers Brown wrote, “Boumediene’s airy suppositions have caused great difficulty for the executive and the courts.” [5] It appears unlikely the circuit court will disagree with the administration in any challenge to a Guantánamo prisoner release.

The Supreme Court has declined to comment on any of the criticism leveled at it or the Boumediene decision. However, through their silence they have indicated that they are willing to allow the federal court in Washington to craft its own unchallenged standards for review.

Vincent Warren, the executive director of the Center for Constitutional Rights (CCR), argues that the Supreme Court is dealing a fatal blow to its own ruling. “By refusing to hear these cases, and any Guantánamo cases since its 2008 Boumediene decision,” Warren said, “the Court abandons the promise of its own ruling guaranteeing detainees a constitutional right to meaningful review of the legality of their detention.” [6] The CCR has been heavily involved in cases concerning detainee rights over the past 10 years and was responsible for filing the appeals on behalf of the seven prisoners.

One of President Obama’s first actions after taking office was to announce plans to close the Guantánamo Bay detention center. On January 22, 2009, just two days after being sworn in, he signed an executive order mandating the closure of the facility within a year. However, Guantánamo Bay quietly celebrated its 10th anniversary in January with a closing date nowhere in the foreseeable future. [7] After facing stiff resistance from civilian and military sources, the administration seems to have accepted the existence of Guantánamo, although President Obama claims he remains committed to closing the facility at some future date. Approximately 169 prisoners remain at the facility according to the Pentagon. Analysis by NPR and The New York Times puts the figure at 171 [8].

Although the Obama administration no longer uses the term enemy combatant, it has have left the policy of indefinite detention of prisoners largely unchanged.

The seven cases primarily concerned the type of evidence required to prove that a detainee was a “part of” al Qaeda. Also at issue was how much weight the courts should give to government claims and whether judges could second-guess the accuracy of intelligence reports and the methods used to obtain the information contained within them. [9] Among other things, the circuit court found that hearsay evidence, uncorroborated out-of-court statements and loose affiliations all constitute adequate proof that a detainee can be held indefinitely. [10]

Of the seven, one noteworthy case involves Yemeni national Adnan Farhan Abdul Latif, who was captured in Pakistan late in 2011. Latif claims to have traveled to Afghanistan and Pakistan for medical treatment. The U.S. military alleges he visited those countries to train with a remote al Qaeda group. [11]

Latif’s detention is based on an extensively redacted government report containing details of an interview that he disputes. His petition was granted by the district court but reversed upon appeal. The district court originally held that the intelligence in the report was “not sufficiently reliable to support a finding by a preponderance of the evidence that Latif was recruited by an Al Qaeda member or trained and fought with the Taliban.” [11]

In its reversal, the circuit court created the concept of a “presumption of regularity.” The new “presumption” standard gave more weight to government evidence, presuming its accuracy regardless of the methods or conditions under which the intelligence was gathered. The standard makes it considerably more difficult for detainees to disprove government reports. [12]

The case even prompted a vigorous dissenting opinion. Circuit Judge David S. Tatel strongly disagreed with the ruling, saying the court “has moved the goal posts” and “called the game in the government’s favor.” [12]

The decision not to review Latif’s case is significant because lawyers had asked the Justices to decided on the question of whether “the court of appeals’ manifest unwillingness to allow Guantánamo detainees to prevail in their habeas corpus cases calls for the exercise of this Court’s supervisory power.” [13] In its denial of review, the Court has indicated that thus far it does not feel the exercise of such power is necessary. Those who believe that the circuit court has established a standard of review that is heavily biased in favor of the government had hoped the Supreme Court would step in to address this issue.

According to Hina Shamsi, the director of the American Civil Liberties Union’s National Security Project, the Supreme Court’s decision in Boumediene was “historic” but “has been severely undermined by a series of decisions from the federal appeals court in Washington.” Shamsi continued, “The Supreme Court’s refusal to hear even a single habeas appeal by a Guantánamo detainee in the past four years despite those decisions is inexplicable.” [14]

Seton Hall University law professor Jonathan Hafetz agrees. According to Hafetz, “The court has effectively abandoned its commitment to ensuring that individuals held in long-term detention at Guantánamo obtain meaningful review of their imprisonment.” [15]

Although it may seem that the refusal to hear any of the cases is tantamount to a tacit agreement with the circuit court, that is not necessarily the case. Since the court has denied the appeals without comment, pundits can only speculate as to the cause. But the effect of the Court’s silence is that the new standards of review will, for now, be allowed to stand. The justices may choose to take up a future case involving a Guantánamo detainee, but it is difficult to see what question might cause them to do so.

The cases are Al-Bihani v. Obama, 10-1383; Uthman v. Obama, 11-413; Almerfedi v. Obama, 11-683; Latif v. Obama, 11-1027; Al Kandari v. U.S., 11-1054; Al-Madhwani v. Obama, 11-7020, and Alwi v. Obama, 11-7700.


4. BOUMEDIENE v. BUSH. Opinion of the Court, online at