Boumediene v. Bush

  • January 11, 2012
    Guest Post

    By Stephen I. Vladeck, professor of law and associate dean for scholarship at American University Washington College of Law.

    Near the end of her majority opinion in Latif v. Obama (the most recent decision by the D.C. Circuit in the Guantánamo habeas litigation), Judge Janice Rogers Brown offered the following observation:

    As the dissenters warned and as the amount of ink spilled in this single case attests, [the Supreme Court’s] airy suppositions [in Boumediene v. Bush] have caused great difficulty for the Executive and the courts. . . . Boumediene fundamentally altered the calculus of war, guaranteeing that the benefit of intelligence that might be gained—even from high-value detainees—is outweighed by the systemic cost of defending detention decisions. While the court in Boumediene expressed sensitivity to such concerns, it did not find them “dispositive.” Boumediene’s logic is compelling: take no prisoners. Point taken.

    For reasons that I elaborate upon below, Judge Brown’s disturbing lament provides an unfortunately appropriate epigraph to mark the tenth anniversary of the detention of non-citizens without trial at Guantánamo.

    Let’s begin with Judge Brown’s suggestion that the “airy suppositions” in Boumediene “have caused great difficulty for the Executive and the courts.” Because the Boumediene Court left the details of habeas review to the lower courts, the only “airy supposition” to which she can be referring is the underlying requirement that the federal courts provide detainees at Guantánamo with a meaningful opportunity to contest the legality of their detention before a neutral decision-maker. Never mind that, according to the Boumediene majority, it is the Constitution itself that requires such an opportunity; as a pure policy matter, why shouldn’t we want the government to have to explain the basis for holding individuals for 10 years or longer without ordinary adjudications of their guilt (or, at the very least, of their ongoing dangerousness)?

    The answers Judge Brown suggests are because such adjudications (1) interfere with the Executive Branch; and (2) “cause[] great difficulty” for the courts. To the former, that certainly isn’t the position of the Obama administration. Indeed, one could perhaps argue that judicial review bolsters such detention by lending a judicial imprimatur to detention in cases in which the government prevails in the courts. Whether or not that’s a convincing rejoinder, though, Judge Brown offers no explanation for how judicial review otherwise interferes with the Executive Branch in any way more burdensome than requiring it to provide minimal evidence satisfying a fairly broad detention standard (especially under the D.C. Circuit’s case law) behind closed doors. One need look no further than the Latif decision itself to see the pains to which the courts have gone to keep sensitive information out of the public record, and there are to date no documented examples of sensitive information being improperly disclosed in the context of the Guantánamo habeas litigation.

  • September 7, 2010
    Guest Post

    By Stephen I. Vladeck, Professor of Law, American University Washington College of Law.

    More than two years after the Supreme Court held, in Boumediene v. Bush, that non-citizens detained at Guantánamo Bay are entitled to pursue habeas corpus relief in the D.C. federal courts, the ensuing litigation stands at something of a methodological impasse. On one hand, the judges of the D.C. district court have issued decisions on the merits in over 50 cases, fashioning a series of procedures, evidentiary rules, and substantive standards based on the text of the rather-ambiguous September 2001 Authorization for the Use of Military Force (AUMF). Applying this body of judge-made law, the various judges of the district court have granted habeas relief to the detainees roughly 75 percent of the time - a statistic that is only the more remarkable when you consider that those who are still left at Guantánamo are supposed to be the "worst of the worst," in contrast to the almost 600 individuals released by the U.S. government long before Boumediene.

    On the other hand, the U.S. Court of Appeals for the D.C. Circuit has (1) reversed several of those grants; (2) suggested in several opinions that the district courts have erred far too often in favor of the detainees; (3) ruled that detainees who can no longer be detained can also not be released into the United States (reversing the district court's conclusion to the contrary); and (4) held that detainees do not have a right to notice and a hearing before being transferred to a third-party country, whether or not the detainee fears torture or other forms of mistreatment once transferred there (again, despite the district court's conclusion to the contrary). Indeed, among the dozen or so D.C. Circuit decisions in Guantánamo cases since Boumediene, there has only been one case in which the Court of Appeals thought that the district court wrongly ruled against a detainee on the merits - and even there, it only remanded for further evidence. [In a forthcoming essay, I explain why these decisions are out-of-step both with Boumediene and with a proper understanding of the habeas remedy that the Constitution's Suspension Clause necessarily protects.]

    In the Guantánamo detainee cases, then, the past two years have witnessed two of the nation's most respected courts, looking at the same facts and legal issues in the same cases, and seeing them completely differently.

    The latest chapter was written by the D.C. Circuit last Tuesday, when it refused to go en banc to rehear the original three-judge panel decision in Al-Bihani v. Obama. What's telling about this development isn't the fact that the Court of Appeals left the panel decision intact, but how it chose to do so. Each of the seven active judges not on the original panel signed a short, joint statement, emphasizing that "We decline to en banc this case to determine the role of international law-of-war principles in interpreting the AUMF because, as the various opinions issued in the case indicate, the panel's discussion of that question is not necessary to the disposition of the merits."

  • March 5, 2010
    Guest Post

    By David J. Cynamon, a partner in the Washington, D.C. office of Pillsbury Winthrop Shaw Pittman LLP. Mr. Cynamon represents the Kuwaiti prisoners at Guantanamo.

    The Supreme Court's recent per curiam decision vacating the D.C. Circuit's opinion in Kiyemba v. Obama, concerning the scope of a federal court's habeas authority to order the release of Guantanamo prisoners, comes as no surprise. Once the Supreme Court granted review - which was something of a surprise - it was clear that the Obama administration would make every effort to moot the case before a decision on the merits. Although those efforts were largely successful, the result is good news, at least in the short term, for Guantanamo prisoners who win their habeas cases.

    Kiyemba involves the Chinese Uighur prisoners at Guantanamo. After the Supreme Court's June 2008 decision in Boumediene v. Bush confirmed that the writ of habeas corpus extended to Guantanamo, the government conceded what had long been known: the Uighurs were not "enemy combatants" and had not supported the Taliban or Al Qaeda in fighting against the United States in Afghanistan. Judge Ricardo Urbina of the U.S. District Court for the District of Columbia granted their habeas petition. But they could not be released to China, where they would suffer government persecution or worse. Nor would any other country accept them because of Chinese threats of reprisal. Accordingly, Judge Urbina ordered them released into the United States. The government appealed, and a panel of the D.C. Circuit reversed, holding that the federal courts have no authority to order the Executive Branch to admit an alien into the country.

    Although the factual issues in Kiyemba were unique, the breadth of the D.C. Circuit's reasoning significantly weakened the habeas remedy for all Guantanamo detainees. judges of the district court read Kiyemba as precluding them from granting the normal habeas remedy of immediate release for prisoners whose petitions had been granted; rather, the court in such cases ordered the government to take "all necessary and appropriate diplomatic steps to facilitate" release. These "pretty please" orders gave the government substantial wiggle room, and it took full advantage. Even in cases in which successful petitioners wanted to return to their home countries, and their home countries wanted them back, the government demanded that the home countries impose restrictions (such as withholding passports) as a condition of the prisoners' release.

    Thus, when the Supreme Court granted certiorari in Kiyemba, it appeared that at least some of the justices were concerned that the D.C. Circuit's decision had emasculated Boumediene. The government immediately stepped up its efforts to resettle the Uighurs elsewhere in order to avoid a potential reversal. By early this year, all but five Uighurs had been resettled (or had agreed to be resettled) in other countries, and the remaining five had been offered resettlement. In these circumstances, the Supreme Court logically remanded the case so that the lower courts could determine the legal impact, if any, of the new facts.

  • January 28, 2010
    Justice at Guantánamo
    One Woman’s Odyssey and Her Crusade for Human Rights
    Kristine A. Huskey

    By Kristine A. Huskey, Attorney and Clinical Professor, National Security Clinic, University of Texas School of Law

    "Justice delayed is justice denied" would become our great battle cry in the advocacy efforts on behalf of our clients detained at Guantánamo. We would hum it like a mantra in court hearings, before Congress, in closed meetings with government officials, and to the public in attempt to obtain for the detainees the right to habeas corpus -- the right to challenge their detention. Eight years and counting, and our cry for justice continues for the men still imprisoned at Guantánamo. Despite the Supreme Court's 2008 ruling in Boumediene v. Bush that the detainees are constitutionally entitled to habeas and despite President Obama's promise to close Guantánamo within a year of his taking office, the prison remains open with approximately 196 men, the majority of whom have had no habeas hearing nor been charged with any crime. Several years ago, a D.C. district court judge once concluded: "It is often said that ‘justice delayed is justice denied.' Nothing could be closer to the truth with reference to the Guantánamo Bay cases."