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Shayana Kadidal

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What's Left of the Guantanamo Litigation? Nothing.

Posted: 06/11/2012 8:29 pm

Four years ago tomorrow, the Supreme Court ruled that Guantanamo detainees have a right to challenge the legality of their detention in federal court. The case, Boumediene v. Bush, was at the time hailed as a landmark separation-of-powers decision, routinely assigned as required reading in law schools now as part of the first-year curriculum. Today, the Supreme Court effectively undid that decision.

In the four years since the Boumediene decision, detainees have won approximately two-thirds of the cases that have been heard by federal trial courts (the "district" courts). However, the Court of Appeals for the D.C. Circuit, the most conservative court of appeals in the nation, has reversed every single detainee victory that the government has chosen to appeal. Seven detainees had petitioned the Court to hear their appeals from D.C. Circuit decisions in the last few months, and the Court had gathered the cases for consideration over the last few weeks. Today, the Court announced that it would not review any of them -- without even so much as a peep of dissent from any of the nine justices.

Most of the detainees in Guantanamo are not litigating their cases because they have already been cleared for release -- 87 of the remaining 169. In the few dozen contested cases occupying the middle ground between "cleared" and "likely to be charged in military commission," many detainees won rulings that their detention was unlawful throughout 2009 and 2010. But the Court of Appeals, in the course of a few months, ruled that hearsay was broadly admissible in these cases. That was enormously significant because, as numerous newspaper accounts over the last four years have demonstrated, a small number of prisoners at Guantanamo lodged accusations against hundreds of fellow detainees (often while suffering clear symptoms of mental illness or post-abuse trauma, and reportedly receiving benefits like video game systems). Their years-old hearsay statements during interrogations could now be taken seriously without giving the accused's lawyers a chance to cross-examine them. Nearly every detainee ever held at Guantánamo faces hearsay allegations that they were, for example, seen at one of the numerous hostels where other foreigners suspected of ties to the Taliban also stayed. The Court of Appeals has opined that that in itself is "overwhelming" evidence of detainability. And it has robbed the trial courts of an age-old prerogative -- to judge the testimony of the accused more trustworthy that the hearsay from his accusers -- by ruling in one case that a mass of such hearsay must outweigh the judge's determination that the accused was telling the truth. The leading case in the group of seven seeking review by the court today, Latif v. Obama, challenged a Court of Appeals decision allowing that a government intelligence report should be presumed to be accurate. That document was the government's primary evidence justifying Latif's detention, and the district judge found in Latif's favor despite it, but two judges of the Court of Appeals reversed that ruling. In dissent, Judge Tatel stated that the ruling "moving the goal posts" and "calls the game in the government's favor."

The net effect is that it is now next to impossible to win a case through appeal -- a fact confirmed by a concurring opinion from a D.C. Circuit judge stating baldly that he doubted "any of [his Court of Appeals] colleagues will vote to grant a petition" if the government could "muster even 'some evidence'" (no matter how dubious the source) against the detainee. Because of the skewed legal standards created by the appeals court, only one of the last 12 cases before the trial courts has resulted in a detainee victory. As Judge Tatel said in Latif, "it is hard to see what is left of the Supreme Court's command in Boumediene."

Since Boumediene, the Supreme Court has not heard argument in another Guantánamo case. Up till now we had assumed that was largely because Justice Kagan, as an administration insider, had recused herself from hearing detainee cases. There seemed grounds for hope in the possibility that she would eventually stop recusing herself and vote in favor of review on one of these cases. But in today's votes she did not recuse herself -- and we still lost.

In the wake of the justices' continued silence, the judges of the D.C. Circuit have been left with the last word in Guantánamo cases. They have used it to openly mock the Supreme Court's authority, with one claiming that Boumediene made "airy suppositions" about the practicality of providing judicial review, another stating "taking a case [for review] might obligate [the Supreme Court] to assume direct responsibility" for the decision, and a third comparing the Justices to Tom and Daisy Buchanan in The Great Gatsby as "careless people, who smashed things up" and who "let other people clean up the mess they made."

In Boumediene the Supreme Court's stated that Guantánamo detainees must receive "meaningful review of both the cause for detention and the Executive's power to detain." But that great victory in Boumediene now means next to nothing to our clients, because the D.C. Circuit is playing the part Arkansas Governor Orval Faubus played at Little Rock. The problem for us is that no one is playing the part of Dwight Eisenhower or the Warren Court.

Ironically, today has proved that the D.C. Circuit's scalding criticism of the Supreme Court was largely correct -- the high court is happy to lay down platitudes, without the courage or commitment to follow through on enforcing the details as the Warren Court did in Cooper v. Aaron, when it forced school desegregation down the throat of an intransigent Arkansas state government. Perhaps the real loser today, as now-departed Justice Stevens said after Bush v. Gore, "is the Nation's confidence in the judge as an impartial guardian of the rule of law."

That this happened without a single dissent is even more shocking (and probably a sign of what the Court has lost with the departure of Justices Stevens and Souter). Put to one side concerns about granting everyone a day in court, and fair process. Innocence, after all, is what caused most people to care about Gtmo in the first place -- the fact that hundreds of detainees were sold into custody by bounties paid to warlords and corrupt Pakistani police, and held based on no real evidence. Surely the Court knows that this still characterizes the typical detainee rotting in Guantanamo today. The majority of detainees today are cleared for release -- 87 in total -- and they have been detained now for three years since the interagency Task Force cleared them by unanimous consent of the CIA, FBI, DOD, State and Justice Departments. Yet only two detainees have been released by the Obama administration since January 2011. Ultimately the fate of the rest is in the hands of the president, who seems utterly uninterested in fulfilling the promise he made on his second day in office to close what is the most infamous prison in the world.

Lost in all of this is what motivated President Bush and candidates McCain and Obama to call for closure of the prison back in 2008 -- not humane concerns for men wrongly held for nearly 10 years (for the three reasons above, politicians need not pretend to care about that anymore), not the $700,000 cost per year per prisoner of continuing to hold all those cleared detainees (which, in a sign of the cynicism of the American public, seems to be the talking point with the most traction), but rather the impact the whole system of indefinite detention without charge (of which Guantánamo is merely the prime symbol) has on the international perception of the United States. The cost of a false positive may in fact be higher than the cost of a wrongful release when our government's announced enemies in the "war on terror" are first and foremost seeking to convert young men to their political cause. Yet the most significant political upheaval in the Muslim world -- the many revolutions of the Arab Spring -- moves forward without any perceptible influence from an administration desperate for credibility with the democratic movements on the ground. As long as the reality at Guantánamo is so far out of sync with our aspirational values as a nation, that is as it should be.

 
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