“Guantanamo day” at the Court
on Apr 1, 2011 at 3:44 pm
Meeting in private Friday, the Supreme Court was scheduled to take its most intense look at the legal status of Guantanamo Bay detainees in perhaps three years. By Monday, it may be clear whether the Justices will assume anew their close monitoring of detainee affairs, or opt to remain further on the sidelines. It has not issued a full-scale decision in a detainee case since it did so in June 2008 in two cases — one from Guantanamo Bay (Boumediene v. Bush), and one from the military operations zone in Iraq (Munaf v. Geren). The Court has a chance to clarify one or both of those rulings, if it takes on any of the cases it was examining Friday morning.
The Court, according to its electronic docket, was due to examine four separate Guantanamo cases at its Conference; each of them involves a legal complaint that the D.C. Circuit Court is failing to follow the Supreme Court’s lead in assuring those held by the U.S. military a “meaningful” chance to challenge their ongoing confinement, and if they win, a real chance to be released. The Obama Administration, however, has countered that the lower courts are doing exactly what the Supreme Court gave them the authority to do — and that none of the results they have reached is worth the Court’s time.
If it should turn out that the Court refuses to review any of the new cases — and that is certainly possible, especially if Justice Elena Kagan takes herself out of all four because of her prior role in detainee cases as U.S. Solicitor General — the practical result would be that control of the law of detention would shift significantly to the White House and to Congress, with a sharply diminished role for the judiciary. That would mark a basic change, since the Court, beginning in 2004, had issued a string of decisions overturning actions by the political branches that had narrowed, or flatly denied, the legal rights of Guantanamo detainees.
Congress has shown little interest in crafting detention policy through new legislation, preferring, instead, to simply pass a series of temporary measures barring the transfer of any Guantanamo detainee to the U.S. mainland and curbing the government’s power to transfer prisoners out of Guantanamo to any country. Those have been enacted largely over the Obama Administration’s protest, but the practical result is that the Executive Branch’s options have been pared down, and there is now no prospect that the President can soon reach his often-repeated goal of shutting down Guantanamo altogether.
Meanwhile, the center of legal activity in detainee cases in lower courts has steadily passed from federal District Courts to the D.C. Circuit Court, where detainees have had far less success as they continued in their challenges to long-term confinement. After detainees had notable success in gaining District Court orders finding no basis for holding them, winning a legal right to release in a clear majority of the cases, the Circuit Court has gone in a completely opposite direction.
Not one detainee has yet won a clear-cut victory in the Circuit Court, all but one of them have lost outright, and not one detainee has left Guantanamo solely on the strength of a District Judge’s release order. Some, of course, have departed, but only because the Executive Branch opted to allow the transfer and worked it out with other countries. (David Remes, a human rights lawyer involved in defending detainees, has compiled new tables summing up the legal situation as of now. A table summarizing the situation at Guantanamo is here; a table compiling the actions of the D.C. Circuit in 30 cases is here, and a table rounding up activity in the Supreme Court is here.) (Remes is an advocate, but the tables are a reliable compilation of court data.)
The outcomes in lower courts have led detainees’ lawyers to press the Supreme Court to do two things: first, to spell out further what it meant in 2008 in granting them a constitutional right to pursue a habeas challenge in a U.S. court, and, second, to stop, or at least to slow down, the trend of rejections of detainee claims in the Circuit Court.  The four cases the Justices pondered Friday range from an ultimate test of a federal judge’s power to bring about an actual release of a detainee whom the government has no legal right to hold, to a test of whether international law puts any limit on the President’s detention power, and to challenges to the procedural rules adopted in habeas cases that have made it easier for the government to justify continued confinement at Guantanamo, giving the detainees fewer legal rights than a person charged with a crime would get in court. (None of the cases the Court is currently examining involves charges of crime against a Guantanamo detainee; they are all civil court cases.)
The case on judges’ power to order release is Kiyemba, et al., v. Obama, et al., docket 10-775, informally known as ” Kiyemba III.” The documents in that case are here. The test of the role of international law is Al Bihani v. Obama, et al. (10-7814); documents here. And the two cases testing habeas procedures are Al-Odah v. U.S. (10-439); documents here, and Awad v. Obama, et al, (10-736); documents here.
The Court has seen variations of Kiyemba and Al-Odah before — in fact, twice before.
The Al-Odah petition involves the same individual, Kuwaiti national Fawzi Khalid Abdullah Fahad Al-Odah, who was the lead figure in a companion case that the Supreme Court decided along with Boumediene, establishing the constitutional right to pursue a habeas challenge to detention at Guantanamo.  Al-Odah also was involved in a companion case to the Court’s 2004 decision in Rasul v. Bush — one of the Court’s first forays into a “war-on-terrorism” case — allowing a challenge under a federal habeas statute (later repealed by Congress, setting off the constitutional fight that the detainees would win in Boumediene/Al-Odah).
The Kiyemba petition is the latest of three filed by lawyers for a group of Chinese Muslim (“Uighurs”) at Guantanamo, and the first of those three petitions — in “Kiyemba I” — was the only detainee case that the Court had agreed to review since its two decisions in 2008, in Boumediene v. Bush and Munaf v. Geren. The Court, however, sent that case back to the D.C. Circuit to consider changed facts about potential transfers of the Uighurs remaining at Guantanamo. The Circuit Court’s refusal to change its holding in “Kiyemba I” has led to the new petition in “Kiyemba III.” The petition in the new case is an attempt to get the Court to say whether it meant what it said in 2008, that federal judges in Guantanamo cases do have the power to order actual release of an individual whose detention is not justified. The Uighurs have long since been cleared for release by the government, but five of them (out of the original 22) remain at Guantanamo.
The Obama Administration has argued that the only reason the five Uighurs remain at Guantanamo is that they refused two offers to be resettled, and so, if they want to leave, the State Department will make new efforts to achieve a transfer. The Uighurs, however, countered that they cannot be put to a choice between going to a country with which they have no tie or affinity, and the right to actual release that the Boumediene decision gave them. The success of the petition in “Kiyemba III” probably depends upon whether the Court is persuaded that something more is involved than simply a refusal to accept an offer to go to a given country. (Even a Circuit Court judge friendly to the Uighurs’ claims argued that they had the key to their freedom in their own pocket.)
In between those two petitions for the Uighurs, the Court denied review in “Kiyemba II,” which was a test of judge’s power to require the government to give advance notice of a detainee’s potential transfer. It was in “Kiyemba II” that the Circuit Court for the first time used the Justices’ 2008 decision in the Munaf case — a case about transferring individuals held by the U.S. military to the government of Iraq for prosecution of crimes committed in that country — to Guantanamo cases, declaring that the Munaf case meant that federal judges may not second-guess the Executive Branch’s decisions about when and where to transfer a detainee.
Three Justices — Ruth Bader Ginsburg, joined by Stephen G. Breyer and Sonia Sotomayor — said in an order the Court issued last July in another detainee case that there are “important questions” about applying the Munaf decision to Guantanamo cases.
The “Kiyemba II” decision, with its interpretation of Munaf, has meant that federal District judges who find that a detainee is wrongly imprisoned cannot actually bring about such a prisoner’s release, but must depend on the diplomatic efforts of the Executive. (Incidentally, the Court is scheduled to examine at its next Conference, on April 15, a transfer-notice case that is a sequel to “Kiyemba II” — the case of Khadr, et al., v. Obama, et al. [10-751], which at one time involved nearly 200 detainees  The fact that the Court previously denied review of “Kiyemba II” does not bar detainees’ lawyers from seeking to bring up a sequel. Another detainee petition on the transfer-notice issue, Mohammed v. Obama, 10-746, is expected to be dismissed because the detainee has been sent home to Algeria, over his protest.)
Al-Odah’s new petition, along with the petition filed for a Yemeni national, Adham Mohammed Ali Awad, seek to challenge two basic procedural modes that the District judges have adopted for Guantanamo cases, with the approval now of the D.C. Circuit. One gives the government wide authority to offer “hearsay” evidence — that is, statements not made under oath, and usually consisting of intelligence reports — to justify continued detention. The other uses the lowest standard of proof — preponderance of the evidence — to test whether the government’s evidence supports detention. Lawyers object to what they have called the “one-size-fits-all” methodology in cases where the facts may vary widely, individual by individual, and case by case. They also have contended that the methods give the detainees less procedural safeguards than a criminal would get in a regular habeas case, even though the detainees are not charged with a crime.  The Justice Department has embraced the two procedures, arguing that wartime detention cases are unique.
The fourth case the Court was examining Friday, the Al Bihani petition, grew out of the first D.C. Circuit decision in a case that had gone to a final habeas ruling by a District judge, refusing to order his release.
In one of the Circuit Court’s most sweeping decision, about presidential detention authority, a majority of the three-judge panel concluded in Al Bihani that international law imposes no limits on that authority. The petition in 10-7814 thus raised that issue, and also sought to test whether the particular armed conflict in which this detainee, Ghaleb Nassar Al Bihani, a Yemeni, was captured, is now over, so he cannot be held further.
Al Bihani was captured while serving in Afghanistan with an Arab brigade, in support of the Afghan government then controlled by the Taliban terrorist network. He claimed he was only a cook in the military operation, but the government contended that meant he helped support the Taliban and its allies in the Al Qaeda terrorist network. The conflict in which he was captured, the petition argued, was an international one — between the U.S. government and the Afghan government then controlled by the Taliban — and that has now given way to a U.S. counter-insurgency campaign.
To his claim that international law required his release, the Circuit Court said international laws-of-war have no bearing on presidential detention authority and, in any event, it concluded that the war in Afghanistan had not ended at all.
The wave of new detainee cases taken to the Court this Term included two that the Justices have already refused to review — Ameziane v. Obama (10-447), a case that the Court allowed to proceed entirely with sealed documents, apparently involving what information may be withheld from detainees in habeas cases, and Al-Adahi v. Obama (10-487), a case that sought to test an unusual Circuit Court ruling that ordered judges to use a mathematical probability theory that resulted in giving heavier weight to the government’s evidence in support of detention.
Among the significant facets of the Court’s refusal to hear either of those cases was that Justice Kagan disqualified herself from participating in each. With one Justice out of a case, the prospect arises that the remaining eight Justices will divide evenly, with the result that no opinion is issued but the lower court decision at issue is simply upheld without comment. The prospect of a 4-4 tie is known to be, at least in some controversial cases, a deterrent to granting review, even though it only takes the votes of four Justices to agree to hear a case.  Supposedly, four Justices are less inclined to vote to take a case if there is a significant risk they could not attract a fifth vote when the case was decided.
If Kagan is out of all of the Guantanamo cases, that may enhance the prospect that none will be granted, and the D.C. Circuit decisions involved would become final.  Whether Kagan has taken part will become known only when the Court issues an order or orders on the cases — as early as Monday.
