Analysis

For most of the past four years, the volunteer lawyers who are helping Guantanamo Bay detainees use their constitutional right of access to U.S. courts have faced a dilemma: they assumed that, at some point, the Supreme Court would again get interested in those cases, but they had no idea what it would take to get the Justices involved again.  They persuaded the Court just once in those years to grant a case — a highly unusual one — but that case went away without any new guidance on where the Court stands.

Last Term, the lawyers failed every time as they tried repeatedly to fathom what might catch the Justices’ attention; they had what they regarded as solid issues, but no case advanced.  This Term, they are trying again — seven more times, so far.   But, among those seven, they have Latif v. Obama, and that may be their best chance.  Indeed, if that one fails, too, it is hard to imagine the Court taking any Guantanamo captive’s case.

At the Justices’ private Conference on Thursday, they are scheduled, according to the electronic docket, to have a look at all seven of the new Guantanamo cases.   That is not a coincidence.  The lawyers have been urging the Court staff to schedule the cases together, and specifically asked that some of the cases be held up for examination until the Latif case, too, was ready.  Now the filings in the seven cases are all in (including an extra brief in one of the cases pointing out just how important the Latif case is), and presumably the Justices are poised to act.   The earliest an announcement of any action is likely to come is next Monday morning.

It is important to note, though, that the Obama Administration has urged the Court to deny review in every one of the new cases; it says there is no issue in any case that is worth the Court’s time.  Given the historic fact that the Court has a good deal of trust for the government’s judgment, it would appear that the detainees’ lawyers are operating at something of a disadvantage as they try to convince the Court that it needs to provide new guidance on the law of detention.  The military prison at Guantanamo Bay has been open for more than ten years, and the law of detention is still a work in progress.

But one facet of the developing law of detention, and it has added a special urgency to the work of the Guantanamo lawyers, is that the D.C. Circuit Court has not approved a single order by a District judge clearing the way for a detainee to leave Guantanamo.  Several score have gone home, but none as a result of a Circuit Court decision.   The question that detainees’ lawyers keep trying to get the Supreme Court to answer is: did you mean it when you said that the Guantanamo prisoners should have a chance at winning actual release? That is an open question, the lawyers have argued, because the Circuit Court has not allowed that to happen in any case actually appealed to that court by the government.

The last time the Court as a whole said anything of real consequence about Guantanamo (aside from saying that government offers of release for five detainees made it unnecessary to decide the one case that had been granted) was on June 12, 2008.   That day, the Court issued a historic ruling in Boumediene v. Bush, declaring for the first time that prisoners held by the U.S. military outside of the Nation’s borders had a constitutional right to go into a U.S. court, using the ancient writ of habeas corpus, to force the government to justify holding them captive even while declining to pursue criminal terrorism charges against most of them.

Boumediene, actually, had two main parts to it: establishing the habeas right for those at Guantanamo, but explicitly giving District Court judges in Washington a wide degree of discretion to work out the details on how to process those challenges.  The District judges, applying a format worked out in November 2008 by a coordinating judge, began processing the cases, and in the majority of cases, they found that detention was not justified.  The District judges applied a strong dose of skepticism to government evidence of terrorism links, especially evidence submitted in intelligence reports, sometimes assembled under chaotic conditions overseas.

It is likely, though, that neither the Justices themselves nor the District judges in Washington (where all Guantanamo cases are filed) anticipated one development that emerged after Boumediene had been decided.  It actually came out of a second detention case decided by the Justices on that same day in June 2008 — Munaf v. Gerenabout two U.S. citizens the U.S. military was holding in Iraq pending criminal trials in that country, and having nothing directly to do with Guantanamo.  But, Munaf v. Geren, as transformed by D.C. Circuit Court, would become a stern mandate to the District judges not to “second-guess” the military’s judgment about the need to detain prisoners at Guantanamo and anywhere else.

In the summer of 2010, three Justices — Ruth Bader Ginsburg, joined by Stephen G. Breyer and Sonia Sotomayor — said publicly that the Court should at some point sort out the impact that Munaf had had on the law of detention, and at that point, lawyers for the Guantanamo prisoners thought they had a clue of how to reopen post-Boumediene issues in the Supreme Court.  But that did not happen, and there was no explanation why it did not happen.  Munaf-related sequels were filed by the Guantanamo lawyers, but none got a hearing.

The D.C. Circuit steadily tightened the limits on the District Court judges, and in the last dozen such cases, the detainees’ challenges have lost in 11.  The only case among those 12 in which a detainee won was the case of Latif v. Obama, involving a Yemeni national, Adnan Farhan Abdul Latif, who was captured in Pakistan within three months after the terrorist attacks on the U.S. on September 11, 2011.  But Latif’s success in the District Court did not last; the D.C. Circuit overturned the judge in that case, too.

There are totally contradictory stories about Latif: his lawyers insist that he went to Afghanistan and then to Pakistan seeking medical treatment for a head injury, but the government insists that he went there along a path followed by terrorist recruits, and that, when he got there, he received military training and joined the Taliban forces and went to war against the Afghan Northern Alliance.  The Circuit Court concluded that he was “part of” the Al-Qaeda terrorist network — the current legal standard for detention.

The primary evidence the government used against Latif was an intelligence report that was based, in part, on interviews that intelligence or military agents had with him and others, overseas and perhaps also at Guantanamo Bay.

On the basis of the conflicting accounts of Latif’s travels and activities in Afghanistan and Pakistan, his case does not stand out as unusual; such factual conflicts exist in all of the cases.   But, as his case developed in the D.C. Circuit and now in the filings in the Supreme Court, here is why it has taken on a status that does not seem to be fully matched by other pending cases:

* It resulted in the creation, not previously found in any prior Guantanamo case, of a “presumption of regularity” and accuracy for government intelligence reports, no matter the conditions under which they were gathered.  It is a legal rule of thumb that makes the government’s reasons for detention significantly weightier, and puts a heavy burden on the detainee’s lawyers to disprove that evidence.   Up to that decision, the District judges had routinely refused to grant the government such a “presumption.”

* A group of intelligence officers and retired federal judges filed amicus briefs with the Supreme Court questioning the reliability of those intelligence reports and the fairness of their use.

* The case produced something that is quite rare in Guantanamo cases in the D.C. Circuit — a vigorous, even angry dissent.  It was filed by Circuit Judge David S. Tatel,  who argued that the D.C. Circuit “has moved the goal posts” and had “called the game in the government’s favor.”

* The main opinion in the D.C. Circuit brought a scathing denunciation of the Supreme Court’s Boumediene decision by Circuit Judge Janice Rogers Brown, who said that the ruling was based upon “airy suppositions” and who suggested that the signal it had sent to the government in the “war on terrorism” was to “take no prisoners.”

* It has drawn the criticism of even outside observers who have generally supported what the D.C. Circuit had been doing in developing the law of detention.

* It appears — at least so far — to be a case in which Justice Elena Kagan can take part; that is not true of all Guantanamo cases, because of her prior role in the Justice Department as U.S. Solicitor General.

* And, to repeat, it is the one case in the last dozen to go through the District Courts to result in a win for a detainee, only to have that, too, set aside in the Circuit Court.

The Latif petition raises three issues.  One has to do with the validity of the “presumption of regularity” for government intelligence reports.  One has to do with whether the D.C. Circuit wrongly took on the role assigned to the District judge to sort out the facts.  (If the Circuit Court had accepted the District judge’s factual findings, all sides agree that Latif’s detention would be invalid.  It was the first Guantanamo case to reach the Circuit Court that had that characteristic about it.)

But the third issue raised is an especially provocative question that, in fact, is also included in a number of the other new Guantanamo cases.  That question reads: “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.”

Implicit in that question are these other questions: Did the Court actually expect in 2008 that a Guantanamo detainee would win release over the government’s objection? What did the Court mean when it said habeas review in Guantanamo cases should be “meaningful”?  How content are the Justices with the handiwork of the D.C. Circuit in defining the law of detention since Boumediene?  Just where would the Justices start if they wanted to examine the Circuit Court’s results? Does the Court see any need to defend itself against the criticism that Circuit judges have aimed, in escalating terms, at Boumediene?

Or, perhaps finally, does the Court have any desire, on any score, to return to a role in monitoring the fate of the 169 foreign nationals who remain at Guantanamo?  What would be lost, to the Court as an institution, if it opted now just to leave Guantanamo to the political branches and the D.C. Circuit?

Posted in Latif v. Obama, Analysis, Cases in the Pipeline, Detainee Litigation, Featured

Recommended Citation: Lyle Denniston, Latif: An answer to detainee lawyers’ dilemma?, SCOTUSblog (May. 15, 2012, 5:01 PM), http://www.scotusblog.com/2012/05/latif-an-answer-to-detainee-lawyers-dilemma/