S.-run military prison in Cuba, and that court has a well-established practice of overturning or delaying any release order issued by a federal judge, when the government objects.
One dissenting judge on that court has protested that the result is that there is very little left of the Supreme Court’s historic ruling in Boumediene v. Bush, decided four years ago tomorrow and giving Guantanamo prisoners a legal right to challenge their continued captivity.
Monday's actions marked the second Term in a row that the Court had refused to hear any Guantanamo appeals. Many of those denials last Term, however, had come in cases in which Justice Elena Kagan had not taken part, presumably because of her former role as U.S. Solicitor General.
As a result, lawyers for detainees had hoped for a different outcome in new cases in which Kagan might take part. Significantly, the orders issued Monday indicated that she was not disqualified in any one of the seven (or in the Padilla case). That is not necessarily hard proof that she did take part in each, but it was a strong indicator of that.
The Court is not staying entirely on the sidelines in terrorism cases, however. Next Term, the Justices will hear a government appeal testing whether potential targets of the government's global terrorism wiretapping program have a right to sue to challenge that program. By contrast, the Court has turned down several cases in which individuals had lost such challenges in lower courts, and asked the Court to intervene.
The Boumediene case was the last major terrorism case that went against the government. There, while establishing a constitutional right for Guantanamo prisoners to file habeas challenges to their detention, the Court left it to lower courts to sort out just how that judicial process would work, case by case.
More than a dozen District Court judges in Washington then took on the initial review task and, for a time, found in a majority of cases that the government had not justified further detention of the individual involved. But, when the government appealed release orders, the D.C. Circuit ruled against the detainee, or else ordered the District judge to reconsider.
In a string of decisions, not one of which the Supreme Court has been willing to review, the D.C. Circuit fashioned its own legal rules for Guantanamo cases, including at least two review methods that strongly favored the government’s evidence.
Along the way, three judges on the D.C. Circuit — Senior Judges A. Raymond Randolph and Laurence H. Silberman, and Circuit Judge Janice Rogers Brown — have publicly and sharply criticized the Boumediene decision.
The Supreme Court, turning its judicial cheek, has never responded to any of those criticisms, other than to leave the D.C. Circuit with virtually sole control of continuing litigation by Guantanamo prisoners and their volunteer lawyers.
Perhaps the most significant of the Circuit Court rulings that the Justices left intact on Monday was its decision in the case of Yemeni national Adnan Farhan Abdul Latif, which ordered District judges to “presume” that government intelligence reports used to justify detention were reliable and accurate, unless a detainee could prove they are flawed. Latif’s lawyers challenged that ruling as tipping the judicial scales much in the government’s favor; indeed, the dissenting judge in that case, Circuit Judge David S. Tatel, said the effect would be that the government would win in every case. (The petition was Latif v. Obama, 11-1027).
One of the questions that Latif’s lawyers had asked the Justices to decide was this: “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.”
By denying review, the Justices apparently concluded that there was no need to use that power in this, or any other new case. The other Guantanamo cases denied Monday were: Al-Madhwani v. Obama, 11-7020; Al-Alwi v. Obama, 11-7700; Al-Bihani v. Obama, 10-1383; Uthman v. Obama, 11-413; Almerfedi v. Obama, 11-683, and Al-Kandari v. Obama, 11-1054.
Of course, the fact that the Court denied review does not mean that it agreed with the result or the reasoning in any of those cases. It is an indication that they felt no need even to review what the Circuit Court had done in a wide array of contexts. None of the actions foreclosed the Court from taking on a future Guantanamo case, but it is difficult to imagine the kind of issue that the Justices would now find worth their time.
The Jose Padilla case that the Justices turned aside did not involve a Guantanamo prisoner. He was never held at that prison, but rather spent about four years in the Navy brig at Charleston, S.C., after President George W. Bush — by direct order — had designated him as an “enemy combatant.” He left the brig only after the Justice Department moved to prosecute him on terrorism-related charges in civilian court in Florida. He was convicted and sentenced to 17 years in prison, but a federal appeals court has found that sentence too lenient, and ordered new sentencing.
Padilla has an appeal pending in the Supreme Court from that conviction (Padilla v. U.S., 11-9672). That case is now set to be considered by the Justices at their private Conference on June 21. The petition denied on Monday had nothing to do with that conviction, but rather was an attempt by Padilla (joined by his mother, Estela Lebron) to revive a constitutional lawsuit he had filed against former Defense Secretary Donald H. Rumsfeld and other high-ranking Pentagon military and civilian officials, claiming that they were responsible for the harsh conditions under which he was held at the Charleston brig. The lawsuit sought $1 in nominal damages against each of those officials or officers individually. Lower courts rejected the lawsuit, finding that it was an attempt to enlist the courts in overseeing the government’s wartime detention policy. (The denied case was Lebron v. Rumsfeld, 11-1277).