Editor's Note :

Editor's Note :

On Monday at 9:30 a.m. we expect orders from the April 18 Conference. On both Tuesday and Wednesday we expect one or more decisions in argued cases; we will be live blogging both days beginning at 9:45 a.m.

Tejinder Singh Contributor

Posted Mon, November 7th, 2011 10:46 am

The Supreme Court and Detainee Litigation

Today we take up the Supreme Court’s holdings relating to the rights of war-on-terror detainees, and its decision to stay out of this controversy so far this Term. In OT07, the Court decided two significant detainee cases, Boumediene v. Bush and Munaf v. Geren. Since then, the Court has said little on the topic of detainee rights, and the D.C. Circuit has held that under Munaf, detainees have little, if any, judicial recourse to unlawful detention. Although the detainees have mounted a series of challenges to the D.C. Circuit’s rule, the Supreme Court has not yet agreed to hear any of them. In the threads below, please post your thoughts on the status and prospects for detainees, and also comment on the Court’s decision to deny review in this Term’s detainee cases.


  • Tejinder Singh – 1 Promoted Comment

    In this thread, please comment on the status and prospects of detainee litigation and rights today.

    • Shayana Kadidal – 2 Promoted Comments

      For the reasons I noted below, the detainees with the strongest cases have rarely litigated their cases to resolution. In the few contested cases occupying the middle ground between easy and hard, many detainees won rulings that their detention was unlawful throughout 2009 and 2010. But the Court of Appeals, following the lead of various district courts, ruled that hearsay was broadly admissible in these cases. That was enormously significant because, as the WikiLeaks files demonstrated, a small number of prisoners at Guantanamo lodged accusations against hundreds of fellow detainees (often while suffering clear symptoms of mental illness or post-abuse trauma, and reportedly receiving benefits like video game systems). Their years-old hearsay statements during interrogations could now be taken seriously without giving the accused’s lawyers a chance to cross-examine them.

      Nearly every detainee ever held at Guantánamo faces hearsay allegations that they were, for example, seen at one of the numerous hostels where other foreigners with ties to the Taliban also stayed. The Court of Appeals has opined that that in itself is “overwhelming” evidence of detainability. And it has robbed the district courts of an age-old prerogative—to judge the testimony of the accused more trustworthy that the hearsay from his accusers—by ruling in one case (Al Adahi v. Obama) that a mass of such hearsay must outweigh the district judge’s determination that the accused was telling the truth (the so-called theory of “conditional probability”). The net effect is that it is now next to impossible to win a case through appeal—a fact confirmed by a concurring opinion in Esmail v. Obama from D.C. Circuit Judge Laurence Silberman stating baldly that he doubted “any of [his Court of Appeals] colleagues will vote to grant a petition” if the government could “muster even ‘some evidence’” (no matter how dubious the source) against the detainee.

      In the face of the Supreme Court’s mandate in Boumediene that the Guantánamo detainees receive “meaningful review of both the cause for detention and the Executive’s power to detain,” the D.C. Circuit seems to be playing the part Arkansas Governor Orval Faubus played at Little Rock. The problem for us is that no one is playing the part of Dwight Eisenhower or the Warren Court. (Indeed, at least two of the judges seem aware of the fact that the high court is unlikely to intervene soon: Silberman, in his concurrence in Esmail, noted that “taking a [detainee] case [for review] might obligate [the Supreme Court] to assume direct responsibility for the consequences of Boumediene,” and Judge Randolph—who wrote all three overturned Court of Appeals opinions in Rasul, Hamdan, and Boumediene—comparing the Justices to Tom and Daisy Buchanan in The Great Gatsby: “They were careless people… They smashed things up … and let other people clean up the mess they had made.”)

      With the Court of Appeals having pulled all the teeth from Boumediene, we advocates for the men at Guantánamo can do little but tell their stories—which we have certainly done to good effect when judicial review looked bleak in the past. But today’s effort is more difficult for three reasons: the DOD’s frequent, unsubstantiated claims that vast numbers of released detainees have gotten into trouble after release (hardly ever made with any specific names or accusations attached); the increasing distance in time from the detainee abuse scandals of 2004; and also the increasing distance in time from the Supreme Court victories in Rasul and Boumediene, which did much to legitimate our cause to skeptical Americans.

      Lost in all of this is what motivated President Bush and candidates McCain and Obama to call for closure of the prison back in 2008—not humane concerns for men wrongly held for nearly ten years (for the three reasons above, politicians need not pretend to care about that anymore), but rather the impact the whole system of detention (of which Guantánamo is merely the prime symbol) has on the international perception of the United States. The cost of a false positive may in fact be higher than the cost of a wrongful release when our government’s announced enemies in the “war on terror” are first and foremost seeking to convert young men to their political cause. Yet the most significant political upheaval in the Muslim world—the great awakening of the Arab Spring—moves forward without any perceptible influence from an administration desperate for credibility with the democratic movements on the ground. Many of those movements were animated first and foremost by a desire to end the Mukhabarat secret police apparatuses that made it so terrifying to express any political opposition to their own governments. Gtmo stands for exactly the same values in the minds of those people, rightly so, especially when the Supreme Council of the Armed Forces in Egypt is using military tribunals to try 1700 protesters arrested on the streets. I suppose that may be the one thing that makes the fates of 171 men matter to the political branches in the absence of any judicial pressure to alter the status quo.

  • Tejinder Singh – 1 Promoted Comment

    In this thread, please comment on the Supreme Court’s refusal to hear recent detainee cases, including the reasons for that decision, your opinion of it, and whether you think the Court will take a more active approach in the future.

    • Shayana Kadidal – 2 Promoted Comments

      There has not been a single release from Guantanamo in the last ten months—by far the longest such stretch of time in the nearly ten-year history of the prison—despite the fact that 89 of the 171 remaining prisoners have been cleared for release by the President’s inter-agency Task Force. The administration, which promised repeatedly to close the prison, blames Congress for erecting various transfer restrictions; more sophisticated observers blame the President’s indecisiveness and lack of political will. But it is clear that both political branches are determined to do nothing to change the status quo for our clients at Guantanamo.

      Usually the constitutional role of the Courts is to break such impasses in the defense of individual rights. But the nomination of Elena Kagan to the Supreme Court effectively ended its role in that fight. She has recused herself from considering the cert petitions in the vast majority of detainee policy cases–every petition having to do with more than procedural or evidentiary issues–and will likely continue to do so for the indefinite future. It takes only 4 votes to grant cert, of course, but without a possible fifth vote on the merits from Kagan, the remaining 4 justices who voted in the majority in Boumediene won’t likely want to take on another Gtmo case. So with her possible fifth vote no longer looming over it, the Court of Appeals for the D.C. Circuit—three times overruled in the major detainee cases by the Supreme Court since 9/11, and very clearly now the most conservative Court of Appeals bench in the country—has assumed the role of final arbiter of the law governing the individual cases.

      That happened quietly. While most of us were consumed in the wake of Boumediene with fighting over the procedural shape habeas hearings would take, the first case (Kiyemba v. Obama) to go to the Court of Appeals involved a group of Uighur men everyone agreed were wrongly held, but who needed asylum from their home country (China). The D.C. Circuit decided that they could not be released into the United States, even though no other country would take them. The lower courts have read this to mean they have no power to order release, period—anywhere. That is decidedly not what Kiyemba stands for–it’s really about the power of the political branches to control immigration–but the Court of Appeals is not without fault in this reading: it issued a summary ruling overturning an order that the State Department merely report on its progress repatriating a man who won his case.

      As a result, the cases of men who have been cleared by Obama’s Task Force have been nearly uniformly stayed at the government’s request–after all, once the government says it wants to try to release them, what more can the district courts do but cheer them on if they cannot order release? Instead, the courts issue what we call “Kiyemba orders” after someone wins their habeas case: “the Court further orders the Government to take all necessary and appropriate diplomatic steps to facilitate Petitioner’s release forthwith.” For a long time after the Rasul Supreme Court decision in 2004, we pointed out that no one had been released by court order despite the many years that decision was on the books. That’s still basically the case today: 7 years after our first win in Rasul and three years after Boumediene, we still have not had a single detainee released because of compliance with a mandate issued by a court.

      The net result is that the easiest cases—those of men who are cleared for transfer and languishing only because of the inertia of the political branches—are not the ones going forward in court. As to the harder cases, a series of D.C. Circuit opinions have left those clients in a nearly hopeless situation as well, as my next post will lay out.

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