The Supreme Court on Monday signaled that it is not ready to intervene again in determining the legal rights of foreign nationals detained at Guantanamo Bay.
The court declined to hear appeals from seven of the 169 men being held in the military prison at a U.S. naval base in Cuba. The action came four years after the court’s controversial decision in Boumediene v. Bush established that detainees had the right to turn to the American judicial system for a “meaningful opportunity” to challenge their confinement.
Human rights lawyers representing the detainees have complained that conservative judges on the U.S. Court of Appeals for the D.C. Circuit, designated to hear all cases from Guantanamo, have thwarted that promise.
If the justices are upset, however, they have not shown it with their actions.
“The court’s decision in Boumediene v. Bush was a historic ruling, but unfortunately it has been severely undermined by a series of decisions from the federal appeals court in Washington,” said Hina Shamsi, director of the American Civil Liberties Union’s National Security Project.
“The Supreme Court’s refusal to hear even a single habeas appeal by a Guantanamo detainee in the past four years despite those decisions is inexplicable.”
Vincent Warren, executive director of the Center for Constitutional Rights, said the court’s action “abandons the promise of its own ruling guaranteeing detainees a constitutional right to meaningful review of the legality of their detention.”
The court did not say why it declined to review the cases.
While the Supreme Court in the 2008 decision established a habeas right for detainees, it left the details on how the claims should proceed to the district court in Washington.
The judges agreed in multiple cases that the government had not made the case that the men should be detained. But the Obama administration fought all plans for release, and judges on the circuit court in DC have not held that a detainee should be freed.
As a result of the circuit court directions, fewer detainees are winning at the lower level.
In addition, several judges on the D.C. circuit have been openly skeptical and even disdainful of the Boumediene decision. In one of the cases at the Supreme Court on Monday, Circuit Judge Janice Rogers Brown wrote that “Boumediene’s airy suppositions have caused great difficulty for the executive and the courts.”
That case involved Yemeni national Adnan Farhan Adbul Latif, who was captured in Pakistan three months after the Sept. 11, 2001, terrorist attacks. Latif and his lawyers contend that he had traveled to Afghanistan and Pakistan to seek medical care for a head injury he suffered in a car accident.
A government report said he followed the same path as other terrorist recruits, and that he received military training and joined Taliban forces.
District Judge Henry H. Kennedy Jr. ordered Latif released, saying the government’s intelligence report was unreliable. It was the only win for a detainee among the past dozen the district court has considered.
But a panel of circuit judges reversed the decision. In an opinion that, when made public contained large sections of redactions, Brown acknowledged the report’s flaws but nonetheless said such documents have a “presumption of regularity.”
Circuit Judge David S. Tatel objected in a lengthy dissent. He argued that the circuit court had “moved the goal posts” whenever a detainee had seemed to prove his case, and said his colleagues’ decisions have made it “hard to see what is left” of the Boumediene decision.
It is because of Kennedy’s decision and Tatel’s dissent that lawyers for detainees hoped they finally had come up with a case that the Supreme Court would see fit to grant. The justices reviewed the Latif decision and the other cases for weeks, but the result was the same.