Primer: The new detainee cases
on Dec 7, 2010 at 7:47 pm
Analysis (UPDATED Dec. 8 with a link to the new petition in Kiyemba v. Obama, 10-775 (“Kiyemba III,” near the close of the post)
For two and a half years, first the Bush Administration and then the Obama Administration, with only small differences in their approaches, have steadily and energetically sought to keep for the Executive Branch most of the control over U.S. detention policy in the “war on terrorism,” even as they were living under a constitutional regime imposed on them by the Supreme Court. They have largely succeeded, with the Supreme Court during that time opting, in the main, to stay on the sidelines as, at most, an interested observer.
But in the past two months, lawyers for captives who have been held for years at the U.S. Navy’s detention prison in Guantanamo Bay, Cuba, have been mounting in the Court a widening series of challenges to the policy gains the Executive has made since June 2008. Now, with the expected arrival at the Court on Wednesday of another new case, the Justices will have facing them a total of eight cases — some with overlapping issues — filed on behalf of scores of Guantanamo detainees.
The Court, one can speculate, is not likely to grant review in all eight, or even in half that number, unless it were willing to conduct something like a grand inquest into what has happened to the law of detention since it issued two historic rulings on the same day, June 12, 2008 — Boumediene v. Bush, and Munaf v. Geren.  In fact, what has happened so far is that the Executive has made real headway in lower courts, especially the D.C. Circuit Court, in narrowing the potential of the Boumediene decision and broadening the reach of the Munaf ruling.
If the new detainee petitions have anything fundamental in common, it is that they seek to reclaim for federal judges a significant measure of control over the prisoners’ legal fate — an outcome that their lawyers had thought they already had achieved in Boumediene. What they had not counted on, it is now apparent, is that the Munaf decision, a unanimous decision that did not create much of a stir at the time, would emerge later as a dominant factor favoring Executive authority. That change has come about largely in the D.C. Circuit Court, seeking to translate the two 2008 decisions into a pervasive law of detention to govern the Guantanamo cases.
The Boumediene ruling, dividing the Court 5-4, gave Guantanamo detainees, for the first time, a constitutional right to go to court to challenge their captivity. It did not, however, go much beyond that basic declaration, leaving it to federal District Court judges in Washington, D.C., to work out the details. The Court did not even offer a basic definition of when the Executive could hold at Guantanamo a person suspected of terrorist ties. The unanimous Munaf decision, which had nothing in it explicitly about Guantanamo, held that federal courts could not control the U.S. military’s decision, in Iraq, to hand over to the Iraqi government American citizens who had allegedly committed crimes in that country.
Initially, it appeared that federal judges, implementing Boumediene, would have wide latitude to craft new habeas rules that would enable them to weigh the legality of all Guantanamo detentions, and, in appropriate cases, to actually order the release of at least some of the captives. The actual result, over the ensuing two years, was that the majority of cases came out with rulings that the detention was not justified, and judges did order some releases. The federal government then challenged in the D.C. Circuit nine of the 38 release orders — as well as interim orders limiting the government’s authority to decide where or whether to transfer Guantanamo detainees.
Relying primarily on a broad interpretation of the Munaf decision, the Circuit Court flatly ordered the District judges not to “second-guess” the Executive’s call on what to do with detainees, even those who had won release orders.  The Circuit Court in no case has approved an actual release, and sometimes summarily struck down judges’ orders seeking to control transfers of inmates, urging the judges to pay more deference to the government’s overall authority to deal with releases as a diplomatic matter.
While that process was unfolding in the courts, there were repeated calls — from some members of Congress, from some legal scholars, and even some of the District judges — for Congress to step in and pass laws to control how the detention system was to work. But Congress did not respond, leaving the issue for the courts to continue to develop not only the procedures but the substance of detention policy.
The Supreme Court, after 2008, agreed on only one occasion to step back in to examine at least some of the issues that were developing. In October 2009, it granted review on whether a judge, finding a detention unjustified, could order captives’ actual release — in that case, release to live temporarily inside the U.S. That case was Kiyemba v. Obama (docket 08-1234). But that case ended without a ruling, when the Court on March 1 of this year told the Circuit Court to take a look at changing circumstances involving those particular prisoners — a group of Chinese Muslim (Uighur) detainees found eligible for release. The Circuit Court then refused to order new fact-finding, and ruled again against any court-ordered release.
That is the case that is now scheduled to return to the Court on Wednesday, with the filing of a new petition, this time on behalf of the five Uighurs still at Guantanamo. In their past pleas to the Court on behalf of the Uighurs, the prisoners’ lawyers have made strong pleas for the Court to reinforce the Boumediene decision, to restore judges’ power to issue a release order that actually would mean release. The new petition, the lawyers have indicated, will make the same basic plea, calling for the Justices to give new vitality to Boumediene.
That, as indicated, will be the eighth new case to land on the Court’s docket since the first of that group was filed in late September.  The first case, too, was one involving a detainee who had been before the Justices earlier: a Kuwaiti, Fawzi Khalid Abdullah Fahad Al-Odah. He had been one of the prisoners directly involved in the Boumediene litigation.
The federal government has not responded to any of the new cases so far. Under present schedules (which might be extended), the first response from the Justice Department is due on Monday; other deadlines run through early January.
It now appears that most, if not all of the new cases, will be considered by only an eight Justice Court. So far, Justice Elena Kagan, the former U.S. Solicitor General, has indicated that she will not take part in two of the cases, but those are the only ones to have reached a point where she had to declare her intentions. She was actively involved, as Solicitor, in the eighth case due to be filed Wednesday.
Perhaps of major importance, for both detainees and the government, is that Kagan’s absence would ensure — whatever her own views — that the detainees will be short one of the votes they previously had. Kagan succeeded retired Justice John Paul Stevens, who was one of the five in the Boumediene majority and was himself a leader of the bloc that had repeatedly overturned earlier D.C. Circuit rulings in detainee cases.
The other junior Justice, Sonia Sotomayor, joining the Court last Term, has yet to cast a vote on the merits of a detainee case. She replaced retired Justice David H. Souter, who was a part of the Boumediene majority. It is generally assumed that she would vote as Souter did on detainee matters; she was one of three Justices who said in July that the Court should take up a case to test the meaning of the Munaf precedent. The Court might split 4-4 in a final tally on any new detainee case, with the result that any Circuit Court ruling at issue would be summarily upheld without an opinion.
The Court, initially, may simply sit on two of the new cases, since they both involve a core issue that is now awaiting a new decision in the D.C. Circuit Court. Those two cases are Mohammed v. Obama (10-746) and Khadr, et al., v. Obama (10-751). Those appeals are seeking to test an April 2009 decision by the D.C. Circuit (in another case with the title Kiyemba v. Obama, but one that is now known informally as “Kiyemba II.” That is the ruling that went the furthest to expand the Munaf decision to impose strict limits on judges’ powers to regulate any aspect of transfers out of Guantanamo, even if a judge seeks only to get more information from the government on whether transfer over a detainee’s objection was justified.
A group of other detainees have asked the D.C. Circuit, in the lead case of Abdah v. Obama (Circuit docket 05-5224), to grant en banc review to consider overruling the Circuit panel decision in Kiyemba II. Without en banc review, the Kiyemba II precedents binds all panels of the Circuit Court and all District judges. That question has been ready for an answer before the en banc Circuit Court since Sept. 27; there is no set timetable for a ruling on it. Lawyers in both the Mohammed and Khadr cases at the Supreme Court have suggested the Justices may want to wait to see what the Circuit Court does.
In order to get a sense of the breadth of legal issues that the Supreme Court is being asked to decide in the new Guantanamo cases, it is necessary to examine each one, because they all differ from each other in some respects.  They fall into three categories: broad claims that go to the heart of the meaning of Boumediene and of government detention power, claims that seek to restore particular powers of habeas judges, and claims that challenge procedural rules adopted for the detainee cases.  Following are the categories, with summaries of the claims made in each case. (Click  on the title of a case for access to the petition.)
Broadest petitions
Al-Bihani v. Obama (10-7814), filed Nov. 29, response now due Jan. 3:
Issues: does the post-9/11 congressional resolution on combating terrorism apply to any detainee who did not take part in the 9/11 terrorist attacks; does that resolution apply to any detainee not captured on a battlefield; does international law put any curb on U.S. government power to detain individuals; does a 2006 federal law validly limit when an individual can invoke the Geneva Convention treaty on human rights.
Kiyemba v, Obama (10-775), filed Dec. 8, response due early January; will become known as “Kiyemba III“. (Justice Kagan expected to recuse):
Issue: does the constitutional right to habeas, as laid down by the Supreme Court, give federal judges authority to order actual release of a detainee held by the U.S. military without a legal basis (a major test of Boumediene‘s scope).
Petitions on judges’ specific powers:
Mohammed v Obama (10-746), filed Nov. 5, response now due Jan. 5 (Justice Kagan is recused):
Issue: Does Munaf require, and does Boumediene permit, a denial of a detainee’s chance to challenge the government’s claim that he will not be tortured if sent to a specific country over his objection, and a chance to seek a court order against that transfer.
Khadr, et al., v. Obama (10-751), filed Dec. 2, response now due Jan. 6:
Issues: Same issue as in Mohammed; in addition, does a federal law that limits court review of claims under an international treaty against torture only apply in a deportation case, and not to a Guantanamo habeas case, and, if it does, is that unconstitutional under the Constitution’s Equal Protection and Suspension Clauses.
Petitions on detainees’ procedural rights in habeas:
Al-Odah, et al., v. U.S. (10-439), filed Sept. 28, response now due Jan. 10:
Issues: Do federal law and court rules limit the government’s use of hearsay to justify indefinite detention; does the Constitution require that the government justify indefinite detention by “clear and convincing evidence,” rather than merely a “preponderance of the evidence.”
Awad v.Obama (10-736), filed Nov. 30, response now due Jan. 3:
Issues: Does Boumediene forbid the admission of hearsay and other evidence without limiting conditions, permit the government to make its case with no witnesses who can be confronted, and allow a “preponderance” standard to justify indefinite detention.
Al Adahi v. Obama (10-487), filed Oct 8, response now due Dec. 13:
Issue: Did the D.C. Circuit improperly require habeas judges to use a mathematical concept — “conditional probability” — in weighing evidence so that they see how all of the evidence may fit together, and perhaps justify detention when individual pieces of evidence would not.
Ameziane v. Obama (10-447), filed June 28 under seal, no public version available; response now due Dec. 16 (Justice Kagan recused):
NOTE: The U.S. government earlier waived a response, but the Court then asked for one on Nov. 16.
Issue: Will the Court clarify what kind of information can be kept secret in Guantanamo Bay cases, if it is not formally classified. (The content of the petition can only be assumed because of the limited information revealed in a heavily redacted Circuit Court opinion.)
