Why the Supreme Court Won't Review Guantanamo Cases

05/24/2011 10:10 am ET | Updated Jul 24, 2011

Once upon a court, a case came out giving Guantanamo Bay detainees the right to bring a petition for a writ of habeas corpus before the Federal District judges. That landmark court decision was Boumedine v. Bush (No. 06-1195).

Translation: Gitmo prisoners, several of whom were foreign citizens detained indefinitely, had the right to bring a petition in Federal Court where they would be allowed to make their case that their detention was unlawful.

But the law isn't always so easy to apply. Throw into the mix two government administrations, one current and one prior, who defend the need to limit the rights of the prisoners to bring suit in Federal Court and you have an uphill legal battle.

This term, eight Guantanamo Bay cases were brought before the U.S. Supreme Court. These cases challenged the legality of the prisoners' detention.

The Supreme Court has denied review of six of the eight Guantanamo Bay detainee cases. With one petition, Al-Bihani v. Obama coming to the court at the end of the term, it's unlikely that there will be a favorable decision in any Guantanamo matter his term.

But the Supreme Court is sending the message to the Guantanamo Bay detainees loud and clear: It's not that easy to get out of here. While many around the world had high hopes that President Barack Obama would change policies regarding Gitmo, his administration has zealously defended the detentions in Federal Court and has adhered to similar arguments as the prior administration, limiting the rights of of Guantanamo detainees to challenge their detention in Federal Court.

The Al-Bihani case is coming up from the D.C. Circuit Court and deals with the detention of a Yemeni national who is being held at Guantanamo Bay. The argument his lawyers intend to bring is one of international law. Al-Bihani was technically never up in arms against the United States and as such, his classification as an "enemy combatant" may be debatable. The question his lawyers intend to raise is whether he should even be held at Guantanamo Bay, under international laws of armed conflict. '

In essence, is mere membership in Al-Qaeda enough to justify indefinite detention at Gitmo?

On first reading, the argument sounds worthy of Supreme Court review. However, given the way the other Gitmo cases have been handled this term by the Supreme Court, Al-Bihani's chances are slim. And throw the politics of the Supreme Court into the mix and the presence of a liberal Justice who once defended Gitmo, the problem becomes more complex -- given paradoxical effect of her presence and her recusal -- and the chances even slimmer.

If the U.S. Supreme Court hears the Al-Bihani decision, Al-Bihani's attorneys will argue that he deserves to be treated as a civilian and not as an enemy combatant. If the Supreme Court agrees, this decision could mark another landmark in the legal process surrounding Guantanamo Bay and the war on terror.

If, however, history is any indication, the case will likely never be reviewed by the Supreme Court.