Documenting detainees’ legal woes
on May 9, 2012 at 4:12 pm
In January 2011, the Supreme Court chose to pass up the first of a stack of then-new challenges by prisoners at Guantanamo Bay to their detention. What the Court could not know at the time is what effect that denial of review would have on detainees’ right to challenge in federal court their imprisonment. A just-released study by a research center at Seton Hall School of Law shows that detainees almost never win their cases anymore — a reversal of a previous trend that had been decidedly in their favor.
Apparently taking their cue from the D.C. Circuit Court’s ruling that the Supreme Court left intact last year, District judges since then have rejected 11 out of 12 detainee challenges, the new report said. That is a 92 percent failure rate, compared with the winning percentage the detainees had — 56 percent — prior to that Circuit decision. The decision had been issued in July 2010, in the case of Al-Adahi v. Obama (Circuit docket 09-5333, Supreme Court docket 10-487).
“A thorough analysis of the government’s factual allegations [against detainees] and the District Courts’ reactions show judicial deference to the government is the new norm,” the report concluded. It was issued May 1 by the Center for Policy & Research at the Newark campus of Seton Hall’s law school. The Center has been monitoring the legal situation with detainees for years, especially through studies led by law professor Mark Denbeaux, the Center’s director.
The report has emerged just as the Supreme Court is getting ready to consider whether to grant review of any of seven new cases filed by lawyers for Guantanamo detainees over the past several months. In one of those cases, Latif v. Obama (docket 11-1027), the petition raised this as one of its questions: “Whether the [D.C.] court of appeals’ manifest unwillingness to allow Guantanamo detainees to prevail in their habeas cases calls for the exercise of this Court’s supervisory power.”
The Circuit Court’s ruling in the Latif case came last October, and it continued a trend of rulings by Circuit Court panels against detainees. No detainee has gained a final victory in the D.C. Circuit since the Supreme Court, in the 2008 decision in Boumediene v. Bush, created a constitutional right for Guantanamo detainees to challenge their confinement in a federal habeas case in District Court. Since the Supreme Court’s denial of the petition in the Al-Adahi case, the Justices have turned aside every other detainee case that has reached them, including two already in this Term. In fact, since the Boumediene decision almost four years ago, the Court has agreed to hear only one detainee appeal, and that one ended without a ruling.
The Seton Hall study shows that the difference in outcomes for detainees at the District Court level appeared to have come about in the immediate aftermath of the Al-Adahi decision in July 2010, 15 months before the Latif decision. Coincidentally, the one case since Al-Adahi in which a District judge has ruled for the detainee was in the case of Yemeni national Adnan Farhan Abdul Latif, but that order was overturned by the D.C. Circuit in the case now awaiting Supreme Court consideration.
In Al-Adahi, the Circuit Court applied to the government’s evidence in detainee cases a mathematical theory called “conditional probability.” Each piece of evidence offered by the government to justify holding a detainee as a terrorism suspect is to be considered not for what it says in itself, but how it might make the next assertion seem more solid, and so on, so that the overall weight adds up to be enough to support continued detention. Using that “probability” scheme, Al-Adahi’s lawyers told the Supreme Court in their unsuccessful appeal, the Circuit Court has substituted its own independent view of the government’s evidence, taking over a role that supposedly belongs to the District judges as trial judges.
Seton Hall’s center has now sought to document the impact. The differences it found — in pre-Adahi rulings versus post-Adahi rulings in the District Courts — “were not limited merely to winning and losing,” the report said. “Significantly, the two sets of cases were different in the deference that the District Courts accorded government allegations. In the 34 earlier cases, courts rejected the government’s factual allegations 40 percent of the time. In the most recent 12 cases, however, the courts rejected only 14 percent of those allegations.”
It summed up: “The effect of Al-Adahi on the habeas corpus litigation promised in Boumediene is clear. After Al-Adahi, the practice of careful fact-finding was replaced by judicial deference to the government’s allegations…The shifting pattern of lower court decisions could only be due to an appellate court’s radical revision of the legal standards thought to govern habeas petitions, raising questions about whether the D.C. Circuit has in fact correctly applied Boumediene.”
The Obama Administration, like the George W. Bush Administration previously, has repeatedly defended the work of the D.C. Circuit Court in Guantanamo cases, and has argued against Supreme Court review of every case that reached the Court. In fact, the government’s lawyers have argued in their Supreme Court filings that the Circuit Court and the District Courts are doing exactly what the Justices intended for them to do after Boumediene.
It may have been significant, when the Justices refused last year to review the Al-Adahi decision, that Justice Elena Kagan did not take part in the order. Presumably, that was because she had some role in relation to that case in her prior service as U.S. Solicitor General in the Justice Department. It is not yet clear whether she will be recused in the new cases awaiting the Court’s attention on this Term’s docket. In two earlier denials this Term, in cases that did not test the legal standards the Circuit Court has required in Guantanamo cases, Justice Kagan took part in one but not in the other. It is conceivable that, because the Court was deeply split in the Boumediene decision, the other Justices have been reluctant to take on a new Guantanamo case when the outcome — without Kagan taking part — might be a 4-4 split, resolving nothing.
