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New try on Guantanamo detention

With a fading chance that the Supreme Court will agree to hear the last of the eight Guantanamo Bay detainee cases filed earlier this Term, making a complete sweep for the government, lawyers for a Yemeni national have made a new bid to get the Justices to clarify — and limit — the law of detention.  The new petition, in Al-Bihani v. Obama (docket 10-1383) may not be acted upon until next Term; the timing appears to be too close.

The petition asked the Court to rule that the President’s detention power applies only to individuals who actually engaged in armed action against the U.S., and thus cannot be used for prolonged detention of an individual simply because he had some ties to an organization, some members of which did engage in terrorism.   The D.C. Circuit Court, however, has ruled that simply being “a part of” that organization — Al Qaeda, a terrorist network — is enough to justify detention.

This case, like most of the others the Justices have considered recently, is likely to be acted upon by only an eight-member Court, with Justice Elena Kagan sitting it out.  She did not take part in April when the Court denied review of the same D.C. Circuit Court ruling that is being challenged in the new petition.  (Coincidentally, both petitions go by the title Al-Bihani v. Obama, but they involve two Yemeni brothers — Ghaleb Nassar Al-Bihani’s case was the one turned aside on April 4 (docket 10-7814); the new one involves Toffiq Nasser Awad Al-Bihani.   They are members of a family of 12 children.)

Among the eight other Guantanamo cases the Justices have examined this Term, review has been denied in six, and the Court simply dismissed a seventh because the detainee had been transferred out of Guantanamo.  The only case left in that group is Khadr, et al., v. Obama (10-751).  

That case has been up for consideration by the Justices at four consecutive private Conferences, and is listed again for the Conference being held on Thursday, according to the Court’s electronic docket.  Although nothing certain can be concluded about the fate of that petition, it seldom happens that a case considered that many times is then granted review.   One likely scenario is that, in one of those Conferences, the Justices voted to deny review, and now one or more Justices who may have wanted to hear the case is writing an opinion to get on the record.

If the Khadr petition is, in fact, denied, it will mean that the Court has not examined the law of detention since its ruling three years ago in Boumediene v. Bush, giving Guantanamo captives a constitutional right to pursue habeas in a U.S. District Court.   At the time of the Boumediene decision, the Bush Administration could not have imagined how successful its lawyers would be in persuading the D.C. Circuit to narrow down the scope of the habeas right established by that ruling.  The Obama Administration lawyers have taken very nearly the same position on the legal issues in the sequels to Boumediene, and they argued against Supreme Court review of all eight of the cases on the Justices’ docket this Term.

If this Term concludes without any grant in a Guantanamo case, it will be a fairly strong signal of perhaps one of two things: first, that those who want to return to an examination of the habeas issue cannot anticipate assembling a majority on the Court, so there is no virtue in granting review (Justice Kagan’s recusals may have played a part in such a calculation); or, second, that a definite majority of the Justices is satisfied with the outcomes the D.C. Circuit has reached.

One of the more controversial of the Circuit Court decisions since Boumediene was the one it announced in the first Al-Bihani case last year.  In that decision, the Circuit Court panel ruled that international law, and law-of-war principles, impose no restrictions on the President’s power of detention of terrorism suspects.  That panel ruling was not reviewed by the full Circuit Court, although some judges on the full Court sought to discredit it; it remains a precedent. 

That is the ruling the Justices refused to hear in April, with Justice Kagan recused.  It is also the ruling that the other Al-Bihani brother is seeking to challenge in the new petition.

The trend lines in the D.C. Circuit on detention law were so clear to this brother’s lawyers that they simply asked the Circuit Court to summarily uphold a District judge’s ruling denying his habeas plea, in order to tee up the case so that his lawyers could go on to the Supreme Court more quickly.   They filed their petition on May 11; the government’s response is now due on June 10.  If, as seems likely, the government asks for and gets more time to respond, there is no chance the case will be scheduled for consideration by the Justices in the current Term, which is expected to end in late June.

The new petition presented a single question: whether “the laws of armed conflict,” as developed in international law, apply to determine the scope “of who may be indefinitely detained” under the authority that Congress gave the White House in the resolution passed right after the September 11, 2001, terrorist attacks — formally, the Authorization for Use of Military Force.

Al-Bihani’s lawyers argued that there is no evidence that he took up arms against the U.S., even though he had some training in an Al Qaeda military camp in Afghanistan.  His lawyers thus insisted that, under law-of-war principles, he is entitled to be treated as a civilian, and civilians are not subject to detention as enemy belligerents.

“The D.C. Circuit,” the petition said, “has settled on a detention standard that ignores the historic law of armed conflict restrictions on indefinite detention.”  That standard, it added, conflicts with Supreme Court decisions dating back to 1942.

The document went on: “The Circuit’s standard allows indefinite detention of an individual based solely on his being “part of'” a group, al Qaeda, without regard to whether the individual in question ever personally engaged in hostilities (direct or otherwise) against the United States or any coalition partner.”

While the government has asserted that it is using the powers Congress gave it under the 2001 resolution, the petition contended, “the Executive can legitimately justify detention only by reference to the laws of armed conflict — laws it at once embraces and shuns.”  Detention must be based upon deeds, not mere associations, it argued.

“Left alone by this Court,” the petition said, “the D.C. Circuit has refused to apply the laws of armed conflict in construing the Executive’s detention authority.  Nearly ten years into the war on terror, it is time for this Court to provide direction.”

The Justices will not act on the case until after they hear the views of the government – views that, almost certainly, would oppose review by the Court.

Recommended Citation: Lyle Denniston, New try on Guantanamo detention, SCOTUSblog (May. 18, 2011, 9:29 PM),