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Detainees’ rights — the next round starts

In the annals of the Supreme Court’s modern rulings on the rights of detainees held by the U.S. military, there is no more familiar figure than Fawzi Khalid Abdullah Fahad Al-Odah — a Kuwaiti national who has been a captive for nearly nine years.  On Tuesday, for the third time, he appealed to the Court, once again challenging his detention.  It is the first of a series of new appeals involving decisions by federal judges implementing the Supreme Court’s 2008 decision in Boumediene v. Bush (and in a companion case, Al-Odah v. U.S.).  Al-Odah’s new petition, with appendix, is here. (A docket number has not yet been assigned.)  (UPDATE: The case has now been assigned docket number 10-439.)

The petition argued that the U.S. District Court in Washington and the D.C. Circuit Court “have effectively gutted this Court’s holding in Boumediene that habeas corpus is a fundamental right to which detainees in Guantanamo are entitled.  This Court should not permit its decision to be undermined by the lower courts through…procedural unfairness.”   Al-Odah, captured in Afghanistan in late 2001 and held at Guantanamo since early 2002, is the first detainee to take his case to the Supreme Court after full review in lower courts of his habeas challenge.

Al-Odah’s lawyers challenged two procedural aspects of habeas review adopted by the District Court and upheld by the Circuit Court: a relaxed standard for admitting statements not made under oath (“hearsay”), and the lowest level of proof the government would have to satisfy to justify continued detention.  The petition thus raises two questions, one on each procedural complaint, arguing that the lower courts have violated the Constitution’s guarantee of due process, federal habeas law, and the federal evidence rules.

On the hearsay issue, the petition argued that the lower courts “have allowed the indiscriminate admission of hearsay, denying the detainees any meaningful opportunity to test the reliability of statements made against them.”  On the proof question, the petition noted that the lower courts have upheld detention based upon “a preponderance of the evidence.”  That, Al-Odah’s lawyers said, is “a burden of proof lower than any ever applied by this Court in a case involving prolonged imprisonment.”  They argued that the standard should be “clear and convincing evidence.”  For Guantanamo detainees, the petition noted, detention may not only be lengthy, but might be for life.

The petition added: “The result of these procedures are habeas hearings that lack meaningful, rigorous standards by which to admit evidence and make ultimate factual determinations.”

Although the procedural issues arise in the context of Guantanamo detentions, the petition said, “they will have a broader and more longstanding impact.  The Guantanamo cases will establish the procedures for habeas proceedings of all prisoners in connection with the current armed conflict who are entitled to seek relief under [habeas law], potentially including even United States citizens detained within the United States.”

Al-Odah’s habeas petition has been pending in federal courts since May 2002, making it the oldest among the Guantanamo habeas cases.

After lower courts had split on whether Guantanamo detainees had any legal right to go to court to challenge their imprisonment, Al-Odah was one of the first group of detainees to take their cases to the Supreme Court, filing in early September 2003.  Those cases led to the first Supreme Court rulings on “war-on-terrorism” issues, in 2004, including a conclusion that federal courts had authority under U.S. habeas law to hear challenges to Guantanamo detention.

After Congress took away that right under federal habeas law, Al-Odah and others, including the Boumediene detainees, returned to the Supreme Court, winning a decision in 2008 — in the combined Boumediene and Al-Odah cases — that struck down the withdrawal of habeas rights, and found a constitutional right to pursue habeas.

While the Supreme Court established that right, it expressly left it to the District Courts and the D.C. Circuit to establish and carry out procedures for handling the Guantanamo challenges.  When the cases returned to District Court, Senior District Judge Thomas F. Hogan was named coordinating judge.  In November 2008, he issued a case management order basically giving the government broad permission to admit hearsay evidence if it were found to be reliable, imposing the burden of proof on the government, but holding that the standard of proof would only be preponderance of the evidence.

Al-Odah’s lawyers told the Supreme Court in their new petition that the evidence offered against him at his habeas trial in District Court, leading to a decision rejecting his challenge, consisted mainly of “unsworn interrogation reports of subjects about whom little or nothing is known, most of which were taken years after the fact under undisclosed circumstances by unknown interrogators whom the government did not make available for cross-examination or to answer interrogatories.”   The judge in his case based the ruling on the preponderance standard.

Al-Odah’s petition to the Supreme Court is an attack not only on the District Court procedures on hearsay and the proof standard, but also on the Circuit Court’s ruling earlier this year in the case of Al-Bihani v. Obama –– a sweeping rejection of most legal claims by detainees challenging District Court orders in their cases. A three-judge panel then applied that ruling to Al-Odah’s case, upholding his continued detention.

Thus, the Al-Odah case provides the Supreme Court with its first full opportunity to review the broad Al-Bihani decision, but also to judge the aftermath of its Boumediene-Al-Odah mandate on habeas rights.

Other Guantanamo detainees are expected in coming weeks to file petitions in the Court, challenging a string of D.C. Circuit rulings that have gone against the detainees.   Several of those are expected to deal with the powers that federal judges have to determine the legal fate of Guantanamo prisoners who have been cleared for release, yet remain at Guantanamo.

That issue turns on the interpretation of another Supreme Court ruling, Munaf v. Geren, issued by the Justices on the same day as the Boumediene/Al Odah ruling.  Although that ruling dealt with prisoners being held by the U.S. military in Iraq, pending criminal trials in the Iraqi courts, the D.C. Circuit has given that decision a broad reading, holding that it bars federal judges in the U.S. from “second-guessing” the government’s decision on what to do with detainees’ resettlement or release to other countries.   The key Circuit Court ruling has come to be known as “Kiyemba II,” with the formal title Kiyemba v. Obama.

Lawyers for Guantanamo detainees have tried several different moves to persuade the Circuit Court to reconsider en banc the Kiyemba II decision, but all of those so far have failed.  The Circuit Court is now considering a plea to hold an initial en banc hearing in 31 pending cases (the lead case is Abdah v. Obama, Circuit docket 05-5224).

On Monday of this week, the Justice Department filed its response to that plea, urging the Circuit Court not to grant review before the full bench.   The Department noted that the Supreme Court had refused to review the Kiyemba II decision, after the Circuit Court itself had refused en banc review, added that the Supreme Court has turned aside emergency pleas by Guantanamo detainees challenging Kiyemba II, and that the Circuit Court has reaffirmed the decision in four other cases.  Nothing has changed to justify a new look at it, the Department’s lawyers contended.

The Department argued in its new filing that the Kiyemba II ruling is a valid reading of the Supreme Court’s Munaf decision.  Although detainees’ lawyers in the Abdah case have noted that three Justices have said that they believe the Court should consider how to apply the Munaf decision to Guantanamo cases, the Department noted that no Justice dissented from the order denying review of Kiyemba II.