The Supreme Court may have lost interest in the real-world effect of  its most significant ruling on the rights of Guantanamo detainees, but the prisoners’ lawyers are pressing on with new attempts to strengthen it.  After the Court at its last Term passed up all eight detainee cases brought to it, counsel for detainees are lining up several new challenges even as the overall law of detention — as interpreted mainly by the D.C. Circuit Court – seems clearly settled against the prisoners.   The continuing theme of the challenges is that the Circuit Court, left unreviewed, is hollowing out the Court’s historic 2008 decision in the case of Boumediene v. Bush, granting detainees a constitutional right to challenge their confinement.

On today’s tenth anniversary of the 9/11 terrorist attacks, and approaching the tenth anniversary of the first U.S. captures of terrorism suspects in Afghanistan and Pakistan and of the opening of the Guantanamo Bay prison, it is clear that the Court’s once-active role as the judicial monitor of the law of terrorism has waned, especially as it applies to the 171 captives who remain at the U.S. naval prison on the island of Cuba.  Moreover, the Court has yet to confront any cases involving the more than 700 prisoners being held at a U.S. military prison at Bagram air base in Afghanistan.  The possibility of lifetime detention is becoming ever more real for prisoners at both of the detention sites, especially because of the D.C. Circuit’s refusal to allow federal judges to order any detainee releases and because Congress has taken increasingly stringent steps to limit the government’s options on detention.

It may be that the Supreme Court will not take up any new detainee litigation until one arrives in which the newest Justice, Elena Kagan, can take part.  She took herself out of seven of the eight cases last Term, presumably because – in her former role as U.S. Solicitor General — she had a central role in developing the Obama Administration’s courthouse defense of detention policy.   With the Court closely divided in “war-on-terrorism” cases, Kagan’s recusal almost certainly played a role in the Court’s choice to bypass many of the cases.

The Court will begin examining new detainee cases at its opening Conference of the new Term on September 26.   It is very likely that the Court will decide not to review the first of the new round of petitions: Al-Bihani v. Obama (docket 10-1383).  That case was filed in May, seeking a Court ruling that detainees cannot legally be held unless they actually engaged in armed conflict against U.S. forces or allied forces.  The Justice Department waived its right to respond to the petition, a signal that it saw little chance that the Court would be interested.  The time for the Court to ask the Department for a response despite its waiver has now long since passed.  That usually means the Justices will simply deny review without comment.

Whether Justice Kagan will become involved in the second new case, involving a Yemeni national, Uthman Abdul Rahim Mohammed Uthman, may become clear after the September 26 Conference.  The Court has before it a motion by Uthman’s counsel for permission to file the petition in that case under seal, because the document includes some officially classified information.   The D.C. Circuit on March 29, in a brisk 14-page opinion, overturned a federal judge’s order that the government had not justified Uthman’s detention.  That ruling created no new law, simply relying upon a string of recent Circuit precedents, none of which the Supreme Court has reviewed and all going against detainee claims.

An investigative journalism service, Pro Publica, has been closely following the Uthman case as it proceeded through lower courts, and has concluded that it was a seriously troubled case because, it found, the main evidence that Uthman was an al Qaeda fighter or at least sympathizer came from two Guantanamo detainees, one of whom committed suicide and the other had become “psychotic” and other evidence was at least problematic. The Pro Publica inquiry was aided by the inadvertent public release of the District Court judge’s ruling in Uthman’s favor, without the deletion of key information that was supposed to be classified and that allegedly cast significant doubt on the tales told against Uthman by other detainees.  It is true, though, that the D.C. Circuit overturned the Uthman release order after it had reviewed the version of the District Court opinion that had all of that information in it.  The Circuit Court has authority to examine secret material, and does so in virtually every detainee case since much of the government’s evidence in those cases is classified or under some “protective” order even if not classified formally.

The Uthman petition that his lawyers are seeking to file itself remains classified.  (Although the petition is now at the Court, it has not yet been officially filed because of the classification complication, and thus it does not yet have an assigned docket number.)  Nevertheless, government security officers have cleared for public release the page of the petition that recites the legal questions that Uthman’s counsel is asking the Court to answer.  (That cleared portion can be read here.)

The most significant of the two questions the Court would be asked to decide (the second of the two questions) is whether the D.C. Circuit’s rulings interpreting government detention power have been done in a way that fails to follow the Court’s ruling in Boumediene v. Bush three years ago.  That ruling, the petition said, required District Court judges in detainee habeas cases to “conduct a meaningful review” of each detention decision.  The petition contended that the Circuit Court’s rulings have barred such review, and also have interpreted detention power in a way that results in the unconstitutional suspension of the habeas writ.

That question, if taken up by the Supreme Court at any point, would very likely give the Justices a wide-ranging opportunity to judge whether the Circuit Court has followed the Justices’ lead in 2008, and whether the Boumediene precedent needs to be clarified or strengthened.

The first question raised in the Uthman case tests whether the Circuit Court has been correct in holding that a Guantanamo detainee can continue to be held if it is more likely than not that he was “part of” the al Qaeda terrorist network, when the definition of being “part” of al Qaeda is so open-ended as to encompass even entirely blameless conduct.  The question contended that detention, perhaps extending for the detainee’s entire life, is not allowed when the individual “was not shown to have fought for al Qaeda, trained to fight for al Qaeda, or received or executed orders from al Qaeda, and was not claimed to have provided material support to al Qaeda.”

The Circuit Court, in its March ruling that Uthman’s captivity was legal, summed up its findings in this way:

“In the years leading up to his capture, Uthman’s life was intertwined in Al Qaeda’s operations.  Uthman attended a school in Yemen where al Qaeda succesfully recruited.  He traveled to Afghanistan along a route used by al Qaeda recruits.  He lied about how he paid for the journey.  He was seen at an al Qaeda guesthouse in Afghanistan.  He traveled to an isolated mountainous region near what was then al Qaeda’s last stronghold in Afghanistan, during a major battle there.  He was captured on December 31, 2001, in a small group that included two al Qaeda members who were with Osama bin Laden’s bodyguards and a Taliban fighter.  He did not have a passport with him.  And he has not credibly explained why he went to Afghanistan or how he found himself traveling with a small group that included two al Qaeda members who were Osama bin Laden bodyguards and a Taliban figher near Tora Bora in December 2001.”

Those findings, put forth as the government evidence, the Circuit Court concluded, satisfied the “preponderance of the evidence” standard that has been adopted in the Guantanamo detainee habeas cases.  “Uthman’s actions and recurrent entanglement with al Qaeda,” the Circuit Court said, “”show that he more likely than not was part of al Qaeda.”

Although the Obama Administration has embraced the “preponderance” standard as the proper one for use in these cases, some members of the Circuit Court have said publicly that they believe that that is too strict a standard to use in judging the government’s evidence.  They would prefer to uphold detention if there were merely “some evidence” of a link to al Qaeda, they have said.  In its Uthman ruling, the Circuit Court panel said that was still an open question.

In calling for a more accepting view of government evidence in detainee cases, Senior Circuit Judge Laurence H. Silberman, for example, has suggested that no one of his Circuit Court colleagues would be willing to uphold the release of any detainee who might post  any danger of becoming involved in terrorist acts after being set free.   He has not said how such a test could be applied, other than to use its possibility as a rationale for forbidding any detainee’s release.

Posted in Detainee Litigation, Featured

Recommended Citation: Lyle Denniston, On 9/11: Boumediene defense goes on, SCOTUSblog (Sep. 11, 2011, 9:08 AM), http://www.scotusblog.com/2011/09/boumediene-defense-goes-on/