Analysis
The Supreme Court on Monday sent its clearest signal yet that it is at least strongly hesitant, if not entirely unwillingly, to second-guess how the D.C. Circuit Court fashions the law of detention of individuals by the U.S. military. In brief, unexplained orders, the Court refused to review three separate petitions that sought to challenge the procedures that the Circuit Court has embraced as lower courts implement the Justices’ 2008 decision in Boumediene v. Bush — the basic decision that gave Guantanamo detainees a right to go to court to contest their ongoing imprisonment. There were no noted dissents from any of the three denials.
What is left for the Court to examine on legal issues involving detainees are, first, an ultimate question of whether federal judges, in these habeas cases, will have the authority to order actual release from confinement (an issue that the Justices considered last Friday at their Conference but did not act upon Monday), and, second, a question of whether the Court will give federal judges any authority to review decisions by the Executive Branch on who can or cannot be transferred out of Guantanamo over their protest (that is an issue that the Court is set to examine at its next Conference, on April 15).
One of the implications of Monday’s action in denying three cases was to undercut a theory that might have explained the Court’s refusal to hear most of the new round of detainee cases; so far, the Court has denied five of the eight that have been pending this Term, and another one is going to be dismissed as moot. The theory was that the new Justice, Elena Kagan, would not take part in any of the Guantanamo cases, because of her prior service as U.S. Solicitor General and a possible prior role in at least some of those cases, and that, without her, the other Justices would not take on a case out of concern that it would simply wind up in the end with a 4-4 split, setting no new precedent on the legal question at issue.
But, on Monday, there was no indication that Kagan had taken herself out of two of the denied cases; she was recused from the third. It appears that she will be out of at least one of the two remaining cases still on the docket; it is unknown what her position will be on the other one that awaits the Court’s attention.
The case that the Court did not act upon Monday is Kiyemba, et al., v. Obama, et al. (10-775), which is an attempt by lawyers for five Chinese Muslim (“Uighur”) detainees to test whether the Court will actually insist that federal judges have the power to order release from confinement of an individual that a judge finds cannot longer be held legally. The government has said it has no reason to continue to hold the five Uighurs, yet they remain at Guantanamo because of an ongoing dispute about whether they are simply refusing offers to be sent to specific countries.
Since the Court left that case untouched this time (the third time in recent weeks that it has had the case before it at a Conference), there is no reliable way to predict what the Court will ultimately do with the case. But the pattern is not an unfamiliar one for a case that the Court does not grant review, and Justices who wanted to hear it take a couple of weeks to write a dissent from that denial. Whether that is the fate of the case now known informally as “Kiyemba III” will not be known until at least April 18, when orders emerge from the Justices’ next Conference.
The other pending case that remains open at the Court at this stage if Khadr, et al., v. Obama, et al. (10-751), seeking to test whether federal judges in Guantanamo cases have any power to block the transfer of a prisoner out of Guantanamo, putting him beyond the reach of U.S. courts. That is the case scheduled for Conference on April 15.
Two of the three cases that the Court denied on Monday were Al-Odah v. U.S. (10-439) and Awad v Obama, et al. (10-736) — both challenges to the use by the government of unsworn statements (“hearsay”), consisting mostly of intelligence reports, to justify continued detention, and the lower courts’ use of the easiest-to-meet standard for the government’s evidence (“preponderance of the evidence”). Those two procedural modes were first adopted by the District Court judges handling the detainee habeas cases, and were then upheld by the D.C. Circuit. It appeared, from the Court’s Orders List Monday, that Justice Kagan had not taken herself out consideration of those cases.
The third denial came in the case of Al-Bihani v. Obama, et al. (10-7814), which was a challenge to perhaps the most sweeping decision yet by the D.C. Circuit against the detainees — a ruling that international law imposes no restrictions on the President’s authority to order the long-term detention of non-citizens believed to have some link to terrorism. The decision also spelled out specifically a wide detention power — that is, of any one who had any link or provided any support to a terrorist network or terrorist camp. Justice Kagan did recuse from that case; following the normal practice, she did not say why.
The Court’s action on Monday may have been a sign that the Court no longer has as strong a champion of detainees’ legal claims now that Justice John Paul Stevens has retired. Since the Court first started issuing rulings in “war on terrorism” cases in 2004, Stevens had been the Court’s leader in asserting a strong role for the Justices in overseeing how the law of detention had developed. There is as yet no indication that another Justice is prepared to step into that role, at least as fully.
The Monday developments also had another implication: they left the conservative majority that still controls much of the work of the D.C. Circuit largely in charge of detention law. The Circuit Court has yet to rule that any one individual at Guantanamo must actually be released, and has repeatedly overturned release orders issued by District Court judges in Guantanamo cases and curbed their power to order actual release.
In a sense, Monday’s denial of review might also count as a personal triumph for a senior judge on the D.C. Circuit — A. Raymond Randolph, who has been the Supreme Court’s severest critic for its rulings on detainees’ rights. In a public speech that has been widely quoted, Judge Randolph compared the Court’s decision in the Boumediene case to the characters in the novel The Great Gatsby, creating messes for someone else to clean up.  Randolph has written some of the most significant Circuit Court rulings against detainees — including two sweeping decisions rejecting the challenges of the Uighurs in the Kiyemba cases. Randolph, of course, has not acted alone, but he has tended to dominate the three-judge panels on which he has sat in Guantanamo cases. (Several of his prior opinions had been overruled by the Supreme Court.)
Lawyers for detainees, in their filings in the new round of detainee cases, have sought to make an issue of Judge Randolph’s particular role. It may now appear that the Supreme Court does not see that as an issue of concern.