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Gitmo Fatigue at the Supreme Court—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on Newyorktimes.com on April 6, 2011.

Gitmo Fatigue at the Supreme Court
By Linda Greenhouse ’78 MSL

Is the Supreme Court finally finished with Guantánamo?

It’s beginning to look that way. On Monday, without comment or noted dissent, the court turned down three separate Guantánamo-based cases. The three appeals challenged how the federal appeals court in the District of Columbia is handling the habeas corpus petitions that the last Guantánamo-related Supreme Court decision, in June 2008, empowered the detainees to file.

That decision, Boumediene v. Bush, was written in broad terms (although by the narrow margin of 5 to 4.) It held that Congress had unconstitutionally stripped the federal courts of jurisdiction over cases filed on behalf of the Guantánamo detainees and that, lacking any acceptable substitute procedure, the detainees must be permitted to challenge their continued confinement through the ancient writ of habeas corpus.

The justices left it to the lower courts to devise the rules by which the hundreds of pending habeas corpus cases related to the detainees would proceed. A kind of controlled chaos initially ensued, as the various judges of the federal district court in Washington threw themselves into the waiting cases, many by then five or six years old.

Who was detainable and what standard of proof did the government have to meet to show that an individual fit the definition? The judges’ answers varied, mostly by nuance. Outside evaluation was difficult, because much of the evidence is classified and the publicly issued opinions had lines, paragraphs and sometimes entire pages blacked out. As of last month, in 59 cases, judges had granted writs of habeas corpus to 38 detainees and denied the writ to 21.

(While dozens of detainees have been released, some after court orders, others deemed suitable for release, including 57 Yemenis, remain in limbo. All releases, even those preceded by court orders, have been exercises of executive branch discretion. The ultimate authority of federal judges to remedy violations of a detainee’s rights by ordering release remains an important unanswered question, and has been raised by another pending appeal on which the Supreme Court has yet to act.)

As the decisions began pouring out of the district judges’ chambers, it seemed inevitable that the Supreme Court would have to step back in to clarify matters. But the Obama administration appealed nearly every detainee victory, and once the cases reached the United States Court of Appeals for the District of Columbia Circuit, the tide turned quickly and clear rules began to emerge. In 10 rulings so far, the appeals court has set aside a grant of habeas corpus in four cases, and affirmed a lower court’s denial of the writ in four. In the remaining two cases, the appeals court reversed the denial of the writ and sent the case back for further proceedings. In other words, in the post-Boumediene era of a nominal right to habeas corpus, no Guantánamo detainee has won a clean-cut victory on appeal.

On two of the major issues, the appeals court has been clear. To make its case for continued detention, the government has only to meet the forgiving standard of a “preponderance of the evidence” — in contrast to the higher criminal law burden of proof beyond a reasonable doubt or the “clear and convincing” evidence required in some civil cases. And hearsay evidence is admissible. Two of the appeals the justices turned down on Monday, Al-Odah v. United States and Awad v. Obama, challenged those holdings. The third, Al-Bihani v. Obama, included those issues and added an issue about the role of international law.

The appeals court’s ruling in the Al-Bihani case was its first in this series of decisions, setting the tone for those to come. But it was the least likely appeal for the Supreme Court to agree to hear, because Justice Elena Kagan was recused, raising the prospect of a 4-to-4 tie; she was solicitor general when that Justice Department office handled the case. She did not recuse herself from the other two cases, however.

There are 172 detainees remaining at Guantánamo, and it is nearly three years since the Supreme Court spoke on any issue pertaining to the island prison. Perhaps it was the news of the Obama administration’s decision, announced Monday, to put the most famous of all the detainees, Khalid Shaikh Mohammed, on trial by military commission that diverted public attention from the court’s rejection of the three appeals. But most people outside the small coterie of those who follow Guantánamo developments obsessively have long since turned their attention elsewhere. News that the Supreme Court was going to weigh in on burdens of proof and hearsay evidence would not likely have made much of a splash even on a slow news day.

So is it a good thing or a bad thing that the Supreme Court has gone missing? It’s a rich question that goes to the role of the court in a novel and perhaps endless conflict, as well as to a less theoretical appraisal of the likelihood that this particular group of justices would come up with usefully clarifying answers.

The court has intervened at three significant points in this legal epic. First, in 2004, it declared that Guantánamo was functionally part of the United States, and not a legal black hole, for jurisdictional purposes and that detainees were entitled to some measure of procedural protection. In 2006, the court invalidated the president’s unilateral revival of the long-disused military commission. And then three years ago was the Boumediene decision on habeas corpus. All these decisions were infused with high drama and required the expenditure of substantial amounts of institutional capital. My sense is that the well, at least for now, has run dry. The court was there when we needed it, for which, as a citizen, I am grateful. If it now has nothing constructive to say, it has earned its rest.

In the law school seminar I’m teaching this semester on the Guantánamo cases and related issues, I asked the students to speculate on why the court turned the latest cases down. They offered several plausible theories: perhaps the justices thought these cases were poor vehicles, procedurally flawed in some discernible way; maybe the justices simply think the appeals court is basically getting it right; or perhaps the court thinks that Congress should have the next word.
As I listed each possibility on the blackboard, one student finally proposed: “Maybe they’re just sick of Gitmo.”

Maybe we all are. But as a chagrined Obama administration was forced to acknowledge this week, it’s still there.