One day before the fourth anniversary of Boumediene v. Bush, which held that detainees being held indefinitely at Guantanamo Bay have the right to challenge their confinement in federal court, the Supreme Court denied review of seven detainee cases that were pending before the court. The decision not to review any of the cases essentially makes the U.S. Court of Appeals for the D.C. Circuit the last stop for detainees seeking habeas corpus. While many detainees won their habeas corpus cases at the trial court level, no detainees have been released from Guantanamo due to these decisions because the DC Circuit has a perfect record of reversing these decisions.
Although today’s action does not have any precedential force, it undercuts the extent to which detainees can seriously challenge their detention by leaving the D.C. Circuit’s pro-detention decisions in place:
- Al-Bihani v. Obama: The D.C. Court of Appeals decided that the Authorization for Use of Military Force is not limited by international laws of war and that the government merely needs to show that an individual “substantially supported” enemy forces in order to indefinitely detain them. According to the court, staying at a Taliban-affiliated guesthouse and working as a cook for the 55th Arab Brigade, which included Al Qaeda members, amounts to substantial support.
- Uthman v. Obama: At the district court level, Uthman’s petition for Habeas Corpus was granted, but the decision was overturned by the D.C. Court of Appeals. The court decided that going to a school that al Qaeda had successfully recruited from and traveling in Tora Bora with al Qaeda members is sufficient to prove that a detainee was “a part of al Qaeda.”
- Almerfedi v. Obama: Almerfedi’s habeas corpus petition was also granted at the district court level. However, the D.C. Court of Appeals decided that the evidence presented by the government was sufficient to prove that Almerfedi was “a part of al Qaeda,” and overturned the decision. The government’s evidence was based the amount of money Almerfedi was carrying, $2000, and on statements made by another detainee that Almerfedi had stayed at an al Qaeda questhouse and that Hussain al-Adeni, who the government contends is the same person as Almerfedi, was an al Qaeda facilitator.
- Al-Madhwani v. Obama: Al-Madhwani was denied habeas corpus and determined to be “a part of al Qaeda” based on his testimony that when he traveled to Afganistan from Yemen, his passport was confiscated and he was sent to a military training facility.
- Al Alwi v. Obama: Al Alwi was also denied habeas corpus by the D.C. Court of Appeals based on the government’s contention that he traveled with and was trained by al Qaeda operatives. The court also decided that out-of-court statements made by a detainee do not have to be corroborated to be used as evidence in a habeas proceeding, and that the court can determine whether the statements are reliable.
- Latif v. Obama: Latif’s habeas corpus petition was also granted at a lower level, only to have it reversed by the D.C. Court of Appeals. The majority of the government’s evidence against Latif was based on a heavily redacted report that Latif claimed did not accurately represent his statements. The court held that the evidence presented by the government must be afforded a presumption of regularity, rejecting Latif’s arguments that the presumption should not be applied to an interrogation report that is subject to interpretation and transcription errors, compiled in a stressful and chaotic situtation, and heavily redacted
- Al Kandari v. Obama: The D.C. Court of Appeals decided that hearsay evidence was admissible in a habeas corpus proceeding.
Taken together, these decisions seriously cripple the ability of detainees to challenge their detention in federal court. The effect of presuming the government’s evidence to be reliable, allowing hearsay evidence, and requiring only that the government prove that a detainee provided “substantial support” to al Qaeda, is a method of review that strongly favors the government in detainee cases. Indeed, one D.C. Circuit judge protested that the result of the detainee cases is that there is very little left of the Supreme Court’s historic ruling in Boumediene.