Lawyers for a Guantanamo Bay detainee on Monday told the Supreme Court that the Obama Administration has sought to abandon two centuries of precedent in its attempt to narrow the procedural rights of the prisoners held by the military.  The document, filed in one of the longest-pending Guantanamo challenges, sought to counter an Administration argument that those challenges are unique, and are fair without full procedural guarantees.

The case of Al-Odah v. U.S. (docket 10-439) appears likely to be the next Guantanamo habeas case that the Justices will examine, among eight new test cases; one has been denied review.  This one is expected to go before the Justices at their private Conference on Feb. 18.   The case involves a Kuwaiti national, Fawzi Khalid Abdullah Fahad Al-Odah, held at Guantanamo more than nine years.

Al-Odah’s petition seeks to raise two issues about how District Court judges proceed in weighing the legality of detentions at Guantanamo, as the judges implement the Supreme Court’s 2008 decision in Boumediene v. Bush, authorizing habeas challenges in U.S. courts.  The detainee is arguing that it is wrong for the judges to routinely admit unsworn “hearsay” evidence, mostly from intelligence sources, and it is wrong for them to weigh detention’s validity by the lowest proof standard — that is, preponderance of the evidence.

On Jan. 12, the government urged the Court to deny review, arguing that the Guantanamo cases are “unique.”   The detainees, it contended, cannot claim the benefit of the usual federal habeas law, or the rules of evidence under federal law, because the District judges gained authority to decide those cases only under the Constitution — that is, by a constitutional grant from the Supreme Court.  (The government view is discussed in this post.)

Replying on Monday, Al-Odah’s counsel argued that federal judges gain authority to decide anything — habeas or otherwise — only under a law passed by Congress.  The Constitution gives the Supreme Court jurisdiction, but lower courts get it only by statute, the reply brief asserted.

The Administration’s contention that habeas law — especially 28 U.S.C. 2241 — does not apply, the new brief argued, “conflicts with two centuries of decisions of this Court, as well as the holding of Boumediene itself.”  As far back as the 1807 Supreme Court decision in Ex parte Bollman, the brief said, the Court had made clear that “the power to award the writ [of habeas corpus] by any of the courts of the United States must be given by written law.”

That principle was not disturbed by Boumediene, the new filing contended. In fact, when the Court in that decision struck down Congress’s attempt to wipe out habeas jursdiction for those at Guantanamo, the Boumediene decision had the effect of restoring those detainees’ right to rely on Section 2241, according to the brief.

If Congress had intended to exempt the Guantanamo cases from the normal working of the rules of evidence, the brief said, “it could have done so in the two years since Boumediene was decided,” but has not done so.

Turning to the level of proof that the government must meet in order to justify continued detention, the Al-Odah brief said the government had cited no case in which the Supreme Court “has ever approved anything less than a clear and convincing evidence standard to support prolonged confinement.”

Responding to the government argument that a preponderance standard is used in military tribunals in deciding on detention of wartime captives, the reply brief said that kind of proceeding is carried out on the battlefield where the capture has occurred.  For Al-Odah, his habeas hearing “was conducted in the ninth year of his captivity, not on or near a battlefield, but in a federal courtroom half a world away from the place of his capture, using evidence that originated largely from prisoners in Guantanamo and not from any battlefield.”   Deference to the military’s battlefield needs, the brief went on, is not justified in the courts where Guantanamo cases are being decided, it asserted.

Posted in Cases in the Pipeline, Detainee Litigation

Recommended Citation: Lyle Denniston, Hot controversy over habeas, SCOTUSblog (Jan. 24, 2011, 7:46 PM),