D.C. Circuit: Last stop for detainees?
on Mar 9, 2012 at 3:48 pm
For almost four years, the Supreme Court has left it to lower courts to sort out the legal review that the Justices mandated for prisoners held by the U.S. military at Guantanamo Bay, Cuba, with a remarkable result: the detainees very often win in District Court, but not one has ever gotten released from confinement by court order. The reason: the government has never lost any of its appeals in the D.C. Circuit Court, and that series of rulings has been accompanied by caustic criticism of the Supreme Court by three of the Circuit Court’s judges. The Supreme Court has never reacted, but lawyers in eight new cases are now urging it to do so.
Based on actual experience since the Court’s historic ruling in 2008 in Boumediene v. Bush, one of two things appears to be true: the Court is satisfied with the results and essentially has taken itself out of the Guantanamo controversy, or the Court has not found a suitable new case that four Justices want to review and is still waiting. In the meantime, the Executive Branch, though frustrated by frequent efforts in Congress to control the fate of the 171 men still at Guantanamo on the theory that most if not all of them are terrorists, has not again suffered a courthouse setback like the one in Boumediene and in three other Supreme Court decisions before that.
Last Term, the Court opted not to hear any of eight cases brought to it by Guantanamo detainees’ lawyers. One factor that seemed to be at work then was that Justice Elena Kagan, a former U.S. Solicitor General who previously had some role in detainee matters in the Obama Administration, took no part in most of those cases. With eight new cases now on file, Kagan so far has not disqualified herself from any, although the occasion for doing so has not yet arisen in several of them. She did recuse in a preliminary vote in a potential ninth new case, but that one has not developed fully yet. There is another pending case, but it was filed for former detainees, no longer held by the U.S.
The government — in both the Bush and Obama Administrations — has taken the view that the Boumediene decision entitles Guantanamo detainees to a single court test of their detention, but that, if they win that case, actual release or transfer is a matter for the Executive Branch, either under its control of immigration and deportation matters or its diplomatic authority. The Circuit Court has embraced that claim, but also has gone far to make it harder for any detainee to win such a case in the first place. In one of the more recent Circuit Court rulings, the dissenting judge argued that it was “hard to see what is left of the Supreme Court’s command in Boumediene that habeas review be ‘meaningful.'” The majority of the Circuit Court, that judge added, has “called the game in the government’s favor.”
Among the lengthy list of cases in which District Court judges have ruled against further detention, a number have involved a judge’s sharp criticism of the quality of proof in intelligence reports offered by the government. But, when the Circuit Court has decided appeals, it has regularly found the evidence sufficient to support further confinement on the theory that official evidence is entitled to judicial deference. It has sent a few cases back to District Court for further review, but has yet to clear any detainee for release. Releases that have occurred have been at the discretion of the Executive Branch.
Although the government has regularly won in the Circuit Court with an argument that only the lowest accepted standard of proof need be satisfied to justify continued detention, a senior judge on the Circuit Court, Laurence H. Silberman, has criticized the Justice Department for not pressing for an even more permissive view of detention authority and has expressed doubt that any of his colleagues would vote to release any detainee without virtually absolute proof that they do not actively support a terrorist group. “Some evidence” should be enough, Silberman has written. Another senior judge, A. Raymond Randolph, has likened the Justices in the majority in Boumediene to fictional characters in The Great Gatsby, “careless people” making messes for other people to clean up. One of the more junior judges, Janice Rogers Brown, has castigated the Boumediene ruling for its “airy suppositions” about the nature of war and for using logic that would lead the Executive Branch to adopt a policy of taking no prisoners. Judge Brown has also argued that international law should put no limits on the President’s detention power.
Lawyers in some of the new cases in the Supreme Court have recounted those criticisms, just to be sure the Justices are aware of them. In one of the new petitions, the lawyers argued that the Circuit Court had “demonstrated open disdain” for the Boumediene ruling, and had “whittled procedural protections in these habeas hearings down to almost nothing.”
The Obama Administration, by contrast, has filed papers in a few of the new cases, contending — as it did in the previous ones — that the system of court review of Guantanamo cases that has unfolded since the Boumediene ruling is working as it should, and that the government will do its best diplomatically to find a place to relocate any prisoner who has won a court-ordered release — if the government lost an appeal. It has also said that Judge Silberman’s remarks on how hard it should be for any detainee to gain release is not the view that prevails on the Circuit Court, and that the government does not share Judge Brown’s view that international law does not limit detention power. The government’s basic view on detention authority is that it may hold anyone who was “part of” a terrorist network or organization. When the government has chosen not to respond to some of the new petitions, the Court has sought a response.
It is not clear at this point just how the Court is processing the new cases. None is currently scheduled for a specific Conference of the Justices, although some were set previously and then were postponed without explanation. Two cases, though, are on temporary hold at the lawyers’ request while a later case was being prepared; it has since been filed. That is the case of Latif v. Obama (11-1027), which is the one in which Judge Brown leveled her harshest criticisms at the Boumediene decision.
As usual, it will take the votes of four Justices to grant review of any of the cases. Because the Boumediene decision came on a 5-4 vote, and the four Justices who were in dissent remain on the Court, votes to review more recent Circuit Court decisions that went against detainees probably would have to come from among the three Justices who remain from the 2008 majority — Justices Anthony M. Kennedy (the opinion’s author), Stephen G. Breyer, and Ruth Bader Ginsburg — along with at least one vote from one of the two newer Justices, Kagan and Sonia Sotomayor. Two years ago, Justices Breyer, Ginsburg, and Sotomayor indicated a willingness to take on a new case at some point. Kennedy did not join in that comment, and Kagan was not on the Court then. Kagan’s recusals last Term thus lowered the prospect of four votes to grant in earlier cases. As a matter of pride of authorship, though, Kennedy is the Justice whose work in Boumediene has drawn the sharpest critique from some of the Circuit Court judges.
Perhaps the most provocative question raised in the new petitions — and it is an issue that seemed clearly designed to get Justice Kennedy’s attention — is this one: “Whether the court of appeals’ manifest unwillingness to allow Guantanamo detainees to prevail in their habeas corpus cases calls for the exercise of this Court’s supervisory power.” The question is based on the premise that the Court, in Boumediene, had said that habeas review for Guantanamo detainees had to be “meaningful” and that actual release had to be an option open to District Court judges. That question is raised in the Latif case, involving a Yemeni national, Adnan Farhan Abdul Latif. A District judge ruled in his favor, but Judge Brown’s opinion for the Circuit Court majority reversed, and laid down the legal principle that government intelligence reports are entitled to a presumption that they are accurate. That opinion prompted an unusual, though sharply worded, dissent from Circuit Judge David S. Tatel. The same question is also asked in the case of another Yemeni, Hussain Salem Mohammed Almerfedi, who won his case in District Court, then the Circuit Court ruled against him, more broadly than the government had asked.
Without knowing at this point when the eight new cases will be sent to the Justices for initial consideration, and assuming that at some point all will be ready, they can now be grouped by the issues they seek to raise. First, there is a list of issues and the cases raising them, by case title and docket number. Later in the post, the petitions are listed with links to all of the filings so far sent to the Court in each.
1. Definition of government power to detain at Guantanamo
Al-Bihani v. Obama (10-1383) — seeks a basic definition of detention power, limited by the laws of war
Uthman v. Obama (11-413) — challenges detention for one who did not actually fight against U.S. or allied forces and provided no direct support to terrorists
Almerfedi v. Obama (11-683) — challenges detention authority if based on non-incriminating facts
Al-Madhwani v. Obama (11-7020) — challenges detention based on “guilt by association” with suspected terrorists, based on visits to guesthouses and training facilities
Al-Alwi v. Obama (11-7700) — challenges detention based on ties to the Taliban after hostilities had ended
2. Circuit Court refusal to uphold any release order
Almerfedi (11-683) and Latif (11-1027)
3. Procedural rights of detainees in court
Uthman (11-413) — violation of the habeas Suspension Clause if habeas review is not meaningful
Almerfedi (11-683) –– validity of requiring detainee to rebut government evidence found to be credible
Latif (11-1027) — challenges presumption of accuracy of U.S. intelligence reports, and challenges Circuit Court power to find facts on its own
Kandari v. U.S. (11-1054) — right to restrict government’s use of hearsay evidence
Al-Madhwani (11-7020) — right to constitutional due process protection
Al-Alwi (11-7700) — inadequate time for attorney to prepare a defense
4. Government power to transfer out of Guantanamo over objection
Abdah v. Obama (11-421) — right of attorney to advance notice in order to challenge planned transfer to a nation where the detainee fears torture
Here are the eight new cases, with filings linked, listed by docket number:
11-1054 — Kandari v. U.S. — petition, Circuit Court judgment order unpublished, U.S. brief due March 26
Beyond those eight cases filed for current prisoners at Guantanamo, lawyers for two former detainees there are seeking to revive their claim that they have suffered harmful consequences of having been treated as enemies and held by the U.S. military. The claims of Nazul Gul, an Afghan, and Adel Hassan Hamad, a Sudanese national, both claim innocence of any terrorist acts. The petition is Gul and Hamad v. Obama (11-7827); it can be found here. The D.C. Circuit ruling against them is here. The U.S. government response was filed on Thursday but is not yet available.
Finally, there is another current detainee case, but all of the papers in it are sealed. It is El Falesteny v. Obama, pending on a motion (11M59) to file a classified petition under seal. Justice Kagan is recused.