by Patrick T. Campbell, Esq.
On Monday, May 23, 2011, the Supreme Court put to rest any chance the Court would hear a Guantánamo detainee related case this Term when it denied certiorari in Khadr v. Obama (Docket No. 10-751). Khadr fell two votes shy of the requisite number for the Supreme Court to grant certiorari. Justices Breyer and Sotomayor dissented, but did not issue separate opinions. Justice Elena Kagan recused herself because she had worked on the case in her previous post as U.S. Solicitor General. Surprisingly, Ruth Bader Ginsburg, who has seemed skeptical about a key facet of lower court review, did not note a dissent of the certiorari denial.
The issues the Supreme Court declined to review in Khadr were whether (1) the Supreme Court's decision in Munaf v. Geren requires, and Boumediene v. Bush permits, denial of a detainee's chance to challenge the Government's claim that he will not be tortured if sent to a specific country over his objection, and a chance to seek a court order against that transfer, and (2) a federal law that limits court review of claims under an international treaty against torture apply only in deportation proceedings and not to Guantánamo habeas cases and, if it does, whether it violates the Constitution's Equal Protection and Suspension Clauses. Khadr also sought reversal of the D.C. Circuit's Order vacating a 30-day, pre-transfer notice requirement that Judge Hogan of the D.C. District Court imposed on the Government in 2008.
The Supreme Court has not decided any cases related to Guantánamo detainees since its June 2008 decision in Boumediene, and has now rejected review in eight cases this Term alone. Critics maintain that the D.C. Circuit's rulings have continued to severely limit the holding in Boumediene, that the Constitution guarantees Guantánamo detainees the right to a "meaningful opportunity" to challenge their indefinite detention. In connection with the D.C. Circuit's rulings in favor of the Government, the D.C. Circuit, without any substantive Supreme Court decision since Boumediene, is developing burdens of proof and procedural and remedial rules applicable to detainee habeas petitions that frustrate and narrow the fundamental Constitutional rights Boumediene afforded detainees. Khadr is just one example; for others, see our prior blog authored by Hanna F. Madbak, U.S. Supreme Court Denies Guantánamo Detainee Cert. Petitions Concerning Habeas Review (May 7, 2011).
The Guantánamo bar must now turn their attention to the next two certiorari petitions to make their way to the Supreme Court. On May 11, 2011, a petition for a writ of certiorari was filed in Al-Bihani v. Obama (Docket No. 10-1383). The question before the Court in Al-Bihani is whether the President's detention power applies only to individuals who actually engaged in hostilities against the U.S., and thus does not apply to individuals who just had some ties to an organization, some members of which did engage in terrorism. The D.C. Circuit previously ruled that simply being part of a terrorist organization is enough to justify detention. The Court will likely not decide this certiorari petition until next Term.
Another case, Abdah v. Obama (D.C. Circuit Docket No. 05-5224), is nearing completion in the lower courts and will likely be the next case, after Al-Bihani, to end up before the Supreme Court on certiorari review. Abdah raises the same question the Supreme Court just declined to review in Khadr, that is, whether a detainee can challenge his transfer to a third country for fear of being tortured in such third country.
For this blog's sources and more information, see: