The chances that the Supreme Court will review the way lower courts have implemented its constitutional decision on the legal rights of detainees at Guantanamo Bay moved close to the vanishing point on Monday, as the Court refused, over two Justices’ dissents, to hear the final one of eight cases considered this Term — Khadr, et al., v. Obama, et al. (docket 10-751).  Perhaps the only surprising thing was that Justice Ruth Bader Ginsburg, who has seemed somewhat skeptical about a key facet of lower court review, did not note a dissent from the denial on Monday.  The Khadr case fell two votes short of the number needed for a grant.

Two more Guantanamo cases are in the offing, but probably will not be ready until the next Term.  One of those has just been filed, seeking to test the scope of government detention power (Al-Bihani v. Obama, 10-1383, discussed in a post last week), and a coming petition for review in a case that is nearing completion in lower courts (Abdah v. Obama, et al., D.C. Circuit docket 05-5224).  If Justice Elena Kagan continues her pattern of staying out of most of the Guantanamo cases, the prospect for review of either of those may be quite remote.  Her absence has raised the prospect of a 4-4 split if the Court were to hear any of the cases, and that would set no precedent.

The effect of the Court’s actions over the past four months, turning aside or dismissing eight cases in a row, is that the Court has left its 2008 decision — Boumediene v. Bush — without any further elaboration by the Justices, with any interpretation of it left to the D.C. Circuit Court.  The most significant of a series of Circuit Court decisions narrowing the potential reach of Boumediene, the April 2009 opinion in Kiyemba v. Obama (informally known as “Kiyemba II“) was the ruling that the Court refused on Monday to review in the Khadr case, and will be at issue again in the forthcoming Abdah case.

In Kiyemba II, the Circuit Court decided the following key points: first, that the Supreme Court’s Boumediene decision was actually sharply narrowed by another ruling issued on the same day, in an Iraq detention case (Munaf v. Geren), so that federal judges were denied almost all power to control the ultimate fate of Guantanamo detainees; second, that the detainees have no other constitutional rights than a basic right to file a habeas challenge to their detention (challenges narrowed in potential by Munaf), and, third, that a 2005 federal immigration law bars a Guantanamo detainee from making a claim in U.S. court that a transfer to a given nation will violate a global treaty against torture.

Probably the most significant of those three conclusions was the first — reading the Munaf decision broadly in order to pare down the scope of Boumediene.  Last July 16, in an interim proceeding in a Guantanamo transfer case, three Justices said that the Court should take on a case to decide law of detention issues involving Guantanamo detainees and not resolved in the Munaf decision.  That was a clear indication that those Justices were skeptical about how the D.C. Circuit had interpreted Munaf and whether it had any link to the habeas right declared in Boumediene.   They signaled that apparent view in a brief comment by Justice Ginsburg, joined by Justices Stephen G. Breyer and Sonia Sotomayor.

On Monday, when review of Khadr was denied, only Justices Breyer and Sotomayor noted that they would have granted review.   If Justice Ginsburg shared that view, she did not note it in the order.  Justice Kagan took no part, without giving an explanation for her recusal.   Justice Anthony M. Kennedy, the author of Boumediene, was not recorded in the order.

For the prolonged courthouse combat between lawyers for the Guantanamo detainees and the government — first the Bush Administration, then the Obama Administration — the message of the Court’s actions this Term was that the government had prevailed in every case.  Indeed, the Obama Administration had asked the Court to turn down all of the cases filed with it this Term that came to a vote for or against review.  And the Administration’s lawyers had argued, in response to the Khadr petition, that the D.C. Circuit had given a correct interpretation of the Munaf decision, as it applied to narrow the powers of federal District judges in dealing with Guantanamo prisoners’ rights.

In terms of constitutional history, the Court’s sweeping declarations in the Boumediene decision, about the role of the judiciary in keeping the government from switching the Constitution on and off, now appear to have meant far less as a check on Executive power than they had seemed when that ruling came down in June 2008.    And, while that decision might once have seemed to hold out the promise of ending the detention of many held at Guantanamo, it now appears to mean that some will remain at Guantanamo for years to come, and that facility will remain open indefinitely.

Posted in Detainee Litigation, Analysis, Cases in the Pipeline

Recommended Citation: Lyle Denniston, Down to the last on detainees, SCOTUSblog (May. 23, 2011, 10:55 AM),